Re Rs

CACV 206/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 206 OF 2012

(ON APPEAL FROM HCAL NO. 99 OF 2011)

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JUDGMENT

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Hon Lam JA (giving the Judgment of the Court):

1.In these proceedings, the Applicant sought leave to apply for judicial review to challenge the rejection of his claim for protection under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [“the CAT claim”] by the Director of Immigration on 27 September 2011 and the dismissal of his Petition against that decision by the Adjudicator on 26 October 2011. He was an Indian national coming from a village in Punjab. He first arrived in Hong Kong as a visitor on 12 February 2001 and he travelled between Hong Kong and the mainland. In July 2005, he was arrested by the police and on 25 October 2005, he was convicted of an offence under the Copyright Ordinance and breach of condition of stay. He was sentenced to 8 and 3 months’ imprisonment respectively, to be served concurrently. A deportation order was made against him on 21 December 2005. Subsequently, he lodged a CAT claim on 1 March 2006. He claimed to be at risk of being tortured if he was returned to India because of his conversion to Christianity.

2.The grounds relied upon by the Applicant to seek judicial review, as set out in the Amended Form 86 are basically two-fold:

(a) The Adjudicator failed to conduct an oral hearing before making her determination of the petition; and

(b) There was no protection against self-incrimination in the processing of the CAT claim, both at its first consideration by the Director and in the consideration of the petition by the Adjudicator.

3.It is to be noted that these are primarily procedural challenges. Mr Parker submitted that once the court concluded that the process was procedurally unfair, the decisions have to be quashed.  Counsel submitted that the Applicant needed not address the substantive merits.  

The refusal of leave by the Judge

4.McWalters J refused leave on 4 September 2012 after an ex parte hearing attended by counsel for the Applicant on 24 July 2012. The reasons given by McWalters J [“the Judge”] were set out in the Form CALL-1 sent to the solicitors for the Applicant on 4 September 2012. They are as follows:

“Grounds on which leave is sought are not reasonably arguable as they do not enjoy a realistic prospect of success for the following reasons:

1. As to 2^nd Decision : Procedural Unfairness – failure to provide an oral hearing

- There is no obligation on the Adjudicator to inform a petitioner of his intention to rely on legal case law for the purpose of directing himself on the correct legal principles relevant to his adjudication of a petitioner’s claim.

- The Adjudicator did not rely on issues of credibility to determine the applicant’s claim.

- In the circumstances of this applicant’s claim there was no duty on the Adjudicator, flowing from the inquisitorial nature of his role, to hold an oral hearing in order to assist the applicant to substantiate his claim.

2. As to the 2^nd and 1^st Decisions : No protection against self-incrimination :

- Applicant was not at risk of prosecution by virtue only of remaining in Hong Kong to process his CAT claim when he entered Hong Kong lawfully. (See Iqbal Shahid v Secretary for Justice [2010] 4 HKLRD 12 and the Prosecution Policy there set out)

- Statements made by CAT claimants are tainted by involuntariness and, as a matter of law, would not be admissible in a Hong Kong criminal trial.

- The undertaking by the Security Bureau not to use anything said by a CAT claimant in the CAT questionnaire is sufficient to protect him from his statement being used as evidence against him in a prosecution for an Immigration offence.”

5.Those reasons should be read in light of what transpired at the hearing of 24 July 2012.  Solicitors for the Applicant had not included the transcript of that hearing in the appeal bundles.  Nor was there any reference to that hearing and the issues raised in the skeleton submissions. This court ordered the transcript to be prepared and a copy of the transcript was supplied to the solicitors for the Applicant before the hearing of the appeal.

6.We take this opportunity to remind practitioners their duty to the court in an ex parte appeal.  As in the case of an ex parte application, a party who conducts an appeal on an ex parte basis like the present one has a duty to be full and frank in presenting the case to the Court of Appeal.  In the present instance, the case as presented originally in counsel’s skeleton submissions in respect of the oral hearing challenge made no reference to what happened at the hearing before the Judge and did not address the issues which were the focus at that hearing.  We find that to be unsatisfactory.  At the hearing of the appeal, Mr Parker took responsibility for this shortcoming and offered an explanation and apologized for his misjudgment in that respect.  We accepted counsel did not intend to mislead the court.   

7.Practitioners are also reminded of their duty enshrined in Order 1A Rule 3.  One of the underlying objectives of the rules is to ensure the fairness between the parties (Order 1A Rule 1(d)).  A party making an ex parte application or prosecuting an ex parte appeal enjoys an advantage in terms of the absence of adversarial submissions from the other side upon which the court normally places reliance in ensuring fairness of its process. Thus, such an appellant and those representing him take upon themselves a heavier onus in terms of taking all necessary steps to ensure the full picture is placed before the court.  Our adversarial system could not function fairly unless parties making ex parte applications or conducting ex parte appeals take their duty to give full and frank disclosure seriously.    

8.We do not suggest that transcript of the lower court hearing must be obtained in every ex parte appeal.  However, those acting for such appellants should at least give an accurate picture to this court as to what happened at the court below and summarize it in such a way that would not distort what had been decided at first instance.

9.At the hearing of 24 July 2012, the Judge made it very clear at the outset that on his reading of the Decision of the Adjudicator, she appeared to decide the petition on the grounds canvassed at paras 13.10 to 17 of the Decision which did not hinge on credibility though she had also commented on certain aspects regarding credibility of the Applicant.  The Judge focused on the lack of suggestion that the threat relied upon by the Applicant to support his CAT claim was inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity and invited Mr Parker to address this point.  This requirement was identified by the Adjudicator at para 8 as element (d) of her Decision [“Requirement (d)”].

10.Mr Parker’s submissions to the Judge in that respect were as follows:

(a) He accepted that Requirement (d) was one of the elements an Applicant must show in establishing a valid CAT claim.  He acknowledged that there was no material placed by the Applicant before the Director or the Adjudicator on  Requirement (d);

(b) He also accepted that in the determination of the Director served on the Applicant before the petition, this flaw in the Applicant’s case had been alluded to;

(c) However, he submitted that the Adjudicator should process the application by way of a rehearing as opposed to an appeal. Because the Applicant had no legal representation in the petition and he omitted to deal with Requirement (d) in his petition prepared by himself, and bearing in mind the seriousness of the matter for the Applicant and the high standards of fairness required, the Adjudicator should have held an oral hearing to invite the Applicant to address Requirement (d); and

(d) Further, he submitted that because the Adjudicator referred to the case of GRB v Sweden (a case not referred to in the determination of the Director), the Adjudicator should have drawn the attention of the Applicant to this case and explored with him at an oral hearing whether he could establish Requirement (d) in accordance with that authority.

11.Viewed thus, paragraph 1 of the Reasons of the Judge set out in Form CALL-1 is clearly a rejection of the submissions of Mr Parker at sub-paras (c) and (d) above.  The Judge plainly reached the conclusion that the Adjudicator had determined the petition on the basis that Requirement (d) was not satisfied and it was not a question of credibility as the Applicant had not put forward any basis to suggest otherwise.  The Judge did not consider that the Adjudicator was obliged to conduct an oral hearing to explore Requirement (d) or to refer the case of GRB v Sweden to the Applicant before she made her determination.

The format of the Judge’s decision

12.The Applicant appealed against the decision of McWalters J. In his skeleton submissions, Mr Parker contended that the Judge was not entitled to give his decision by way of Form CALL-1. He submitted that the practice of notifying the parties of a decision on leave to apply for judicial review is against Article 10 of the Hong Kong Bill of Rights and Order 42 Rule 5B(5) of the Rules of the High Court. In particular, counsel relied on the following parts of Article 10 and Order 42 Rule 5B(5):

“… any judgment rendered in … a suit of law shall be made public …

Where the judgment or order and reasons therefor or the reasons are given at a later date and, being recorded in writing, are not read in full, the Court shall –

(a) hand down a copy thereof for each of the parties and endorse the record accordingly …”

13.The practice of making a decision on application for leave by way of Form CALL-1 has been in place since the issue of Practice Direction SL-3 in 1998.  The Judge followed this long standing practice in setting out his decision in CALL-1.

14.Mr Parker did not challenge the use of Form CALL-1 as such. However, he submitted that in addition to CALL-1, the Judge should also hand down a judgment setting out his reasons for refusing leave.

15.In our view, in the context of a leave application, bearing in mind what had happened at the hearing of 24 July 2012, adequate reasons have been given.  The Applicant should not have any difficulty in understanding the reasons why the Judge refused leave.  Mr Parker has no difficulty in mounting a challenge to the Judge’s decision.  This court has no difficulty in dealing with Mr Parker’s submissions.  We shall discuss later whether those reasons were correct. But what cannot be said is that the Applicant, his lawyers or the court has no idea as to why leave was refused.

16.The requirement of leave is a filtering process.  We do not think it is necessary for a full judgment to be written for every application for leave.  That would defeat one of the purposes of having a filtering process. In our view, there is no requirement in law for a judge to set out the facts or the legal submissions at length in a decision refusing leave. There may be cases where a judge deems it appropriate to give a separate judgment on granting or refusing leave.  That is a matter of discretion.  But in most cases, it would be sufficient for a judge to give brief reasons which indicate to the parties why leave is refused or granted.  Usually, there is no need to delve into a lengthy analysis of the contentions advanced by an applicant.  The brief reasons should be read in conjunction with the arguments advanced on paper and, if there was a hearing, the arguments raised at the hearing.  If the reasons, read in such light, give a clear idea as to why leave is granted or refused, they are adequate. 

17.We do not think Order 42 Rule 5B(5) or Article 10 requires more in terms of the contents of the reasons given for refusal of leave.  Mr Parker has not showed us authorities as to the applicability of these provisions to a decision on granting or refusing leave.  Since this is an ex parte appeal, we do not think it is the right occasion for this court to come to a concluded view in this respect.  Even assuming that they are applicable, we do not think Article 10 dictates that there should be a separate judgment in addition to the decision set out in CALL-1. In terms of the public nature of the document, a decision in CALL-1 is as much a public document as a judgment handed down to the parties. Unless the court expressly restricts the publication of that document, and none is imposed in the present case, the parties are at liberty to publish that document.  For Article 10 purposes, we hold the view that the decision in CALL-1 is a public judgment.

18.The main purpose of Order 42 Rule 5B is to ensure reasons are given for a decision made by a judge. Rule 5B(5) is to cater for the situation where reasons are given which had not been read in full at the relevant hearing, a copy of those reasons should be given to the parties.  It does not prescribe the format in which the reasons must be given and the format of the document in which such reasons shall be supplied to the parties. In the present case, it is not suggested that the Judge has given any reasons other than those set out in CALL-1.

19.As regards the other aspects of Rule 5B(5) in sub-paras (b) and (c), they are to ensure that the public has access to the reasons given for an order.  As we see it, there is no reason why a copy of CALL-1 cannot be made available for public inspection under Order 63 Rule 4(1)(b).  Whether it would be better for the reasons to be set out in a judgment format is a separate question which could not impinge upon the legal effect of the Judge’s decision on 4 September 2012. 

20.There is no merit in Mr Parker’s challenge as to the format in which the decision is made.

The oral hearing challenge

21.We can turn to the substantive merits of the application for leave.  The test for deciding whether leave should be granted is, as laid down in Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, that the grounds must be shown to be reasonably arguable. In this connection, it is necessary to point out that the mere fact that leave had previously been granted by another judge on a similar point does not necessarily mean that leave should be granted in this case.  First, there may be differences in the factual matrix which call for different considerations. Second, the state of the law may have been further clarified since the grant of leave in a previous case.  Third, there may be factors applicable in the instant case that are not germane in the earlier case which affect the exercise of discretionary considerations in terms of grant or refusal of leave.  Fourth, the issues raised in the Forms 86 in the two cases may be different.  As observed during the course of the appeal, this court must assess whether the grounds raised by the Applicant are reasonably arguable by reference to the materials placed before us and it would not be right to second-guess why leave was granted in another case.   

22.Whilst the first ground of the Applicant focused on the lack of oral hearing in the petition, it should be borne in mind that an oral hearing is only a facet of fairness.  The ultimate issue is whether the Secretary for Security acted fairly in processing the Applicant’s CAT claim and this must be considered globally.  The determination of the petition should not be viewed as an isolated process.  The petition is part and parcel of the overall administrative process in the determination of the CAT claim.  This does not mean that an adjudicator need not act fairly and, as we shall see, he or she has a duty in observing the high standards of fairness laid down by the Court of Final Appeal in Prabakar.  But in processing a petition, an adjudicator is entitled to have regard to the primary materials placed before him or her in deciding what procedures should be adopted.  There is no need for an adjudicator to require a CAT claimant to re-submit another CAT questionnaire.  Likewise, an adjudicator is entitled to have regard to what had already been set out in the records of interview kept by an immigration officer. 

Duty to act fairly

23.We shall therefore start with examining some general principles on the duty to act fairly in processing a CAT claim.  

24.In Security for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, the Chief Justice highlighted the ultimate issue at para 43:

“The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter …”

25.After referring to the context of a CAT claim, His Lordship concluded that high standards of fairness are demanded in the determination of such a claim.  At paras 53 to 55, the Court of Final Appeal made some observations in respect of the high standards of fairness.  It should be noted that these observations are general comments and, in light of para 43 of the judgment, how the standards are to be applied in a particular case must depend on the facts of the case in question.

26.In the present context, what was said at para 54 is significant:

“… it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned. …”

27.In TK v Jenkins [2013]1 HKC 526, after referring to the observations made in Prabakar, the Chief Judge said at para 22:

“How the requirement of high standards of fairness would modify or otherwise affect, in practice, the burden of proof as it is otherwise generally understood would obviously depend on the circumstances of each individual case. As was pointed out in Prabakar (para 53), many if not most of these torture claimants may have fled from their countries concerned with few belongings and documents and their levels of education may be relatively low. The difficulties of proof faced by them in this situation should be fully appreciated to meet the high standards of fairness required. High standard of fairness may therefore require the Director to conduct investigation and obtain relevant information and materials on general country conditions depending on the facts and issues raised in a case.” (my emphasis)

28.Then at para 24, he continued:

“Moreover … high standards of fairness may, depending on the facts, require the Director or the adjudicator to probe further into an answer or an omission. For instance, where it is readily apparent that something had gone amiss … or that a point has obviously been overlooked or missed out. But again everything depends on the facts. There may be no duty to keep probing or inquiring where the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention.”

29.What was said at para 25 is also relevant:

“High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’. The exercise of determining whether a claim made under art 3(1) of the CAT is valid must be one of ‘joint endeavour’ …”

30.It was stated clearly that the legal burden is on a torture claimant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture and that burden applies to all issues pertaining to the establishment of such grounds, see paras 19, 35, 51, 55 and 57.

The case of the Applicant and the information he provided

31.We shall now turn to the facts of the present case. The Applicant did not suggest that he had been tortured or that he had fled from a risk of being tortured when he left his hometown.  According to his answer given in the CAT questionnaire, he came to Hong Kong in 2001 to do some business.  Before that he had been living in his hometown for 10-12 years.  He had had 15 years of education, including one year of post-secondary education. In his affidavit filed in support of his application for anonymity order in these proceedings, he confirmed that he could read, write and understand English.  He made a similar confirmation in the CAT questionnaire which he completed in English without any need for interpretation.

32.He said he was converted to Christianity in 2003 after he had come to Hong Kong.  Though he had not gone back to his hometown since then, he was informed that people there found out about his conversion and the Sikh organizations in his hometown “had gone against him”[1] and wanted to kill him.  He further claimed his father had been killed by someone due to his conversion and he relied on a letter from his mother to support his claim.  He said posters depicting him as a traitor with death threats had been put up outside his family’s home.

33.He did not identify precisely the persons who threatened to inflict punishment on him.  He described them as “people of Sikh religion” and “Sikh organizations”.  There is no suggestion that such threats come from the government or any governmental agencies.

34.In the CAT questionnaire the meaning of “torture” for the purposes of CAT had been explained clearly, see the explanation under Part 3.  In particular, it was clearly stated that the pain or suffering had to be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

35.The questionnaire also had a reminder that in answering the questions in it, an applicant “should tell us everything which you consider relevant to your claim and which you wish the Director to take into account” and “should give full details of the relevant events”.

36.On Requirement (d), Questions 37, 39 and 41 and his answers are relevant:

“37. Did you seek assistance from, or report your fears to, any authorities in your country of origin or elsewhere?

Yes [ ] No [V]

39. If you did not seek assistance or report it, why:

I came in Hong Kong on 12 Feb 2001. I converted to Christianity in 2003. Since 12 Feb 2001 I never go back to India. How come I seek assistance or report.

41. Do you think the authorities in your country of origin can and will protect you if you return? Why and why not?

I have no hope of any type of help from any organizations.  If there was such hope, that mean if some one could help me then there was no need of contacting you.”

37.In an interview on 8 May 2006, the immigration officer probed him further on this aspect.  The relevant questions and answers are:

“Q50: Do you think the authorities of your country can and will protect you if you go back?

A50: No.

Q51: Why?

A51: Because the Sikh organisation was not afraid of the government.

…

Q62: Have you ever reported the incident or your fear to any authorities?

A62: No.

Q63: Why?

A63:    Because I was in Hong Kong, I could not make the report.”

38.In another interview on 2 July 2010, the Applicant was invited to elaborate on his answer to the questionnaire in this respect.

“Q23:    Referring to your Ans 41 in Questionaire, what do you mean by “I have no hope of any type of help from any organizations”?

A23:    You asked me Q41.  So I gave you the answer.

Q24:    So what is the meaning “no hope”.  Are you elaborate and say something to support your answer?

A24:    “No hope” means that all the ways are closed for me.”

39.In the Notice of Determination of 27 September 2011 [“the Notice of Determination”], the Director highlighted the difficulties of the Applicant’s CAT claim on Requirement (d) in these paragraphs:

“(III)(A) …

Leaving aside the issue of credibility for the moment and taking your claim at its highest based on your assertions, your claimed threats made against you by your villagers and Sikh activists in India as arising from your religious conversion from Sikhism to Christianity in Hong Kong do not amount to torture within the meaning given to it in Article 1 of the Convention for the following reasons:-

(a) There is nothing to suggest that there was/is/will be any official consent to, involvement or acquiescence in your claimed threats, if any, made against you by your villagers and Sikh activists in India. The dispute between you and your villagers and/or Sikh activists over your religious conversion from Sikhism to Christianity is, by nature, merely a personal matter in religious context. …

(c) You have neither put forward a case that you would be subjected to torture by any public officials or authorities because of your religious conversion from Sikhism to Christianity upon your return to India. That being the case, there is no basis upon which it may be suggested that you would be subjected to “torture” within the definition under the Convention upon your return to India.

(d) You stated that you converted from Sikhism to Christianity whilst staying in Hong Kong in June 2003 and after your arrival in Hong Kong for business in early 2001. You never returned to India and thence you did not seek assistance or report your fear of being killed by your villagers and Sikh activists. That said, there is no indication that the Indian authorities had ever refused to help you if you reported your case to the Indian authorities and solicited assistance from them. As a matter of fact, you provided in the Questionnaires that you have been subjected to torture by the Sikh activists and that you and your family members had never been arrested, detained or imprisoned by any authorities in India. It is far-fetched to say that there is any state involvement or consent or acquiescence in your dispute with the villagers and Sikh activists.

In the absence of any reasonable suggestions of <1> you having suffered from any severe pain and suffering; and <2> state involvement or consent or acquiescence in any of the acts allegedly done by your villagers and Sikh activists over your religious conversion, it is not accepted that your claimed torture or perceived risk of torture from your villagers and Sikh activists, even if established, amounts to “torture” within the definition under the Convention. …

(C) No Real Risk of Torture upon Return

Even if credibility of your claim is not disputed and taking your claim at its highest based on your assertions, and also given the assessment made in paragraph (A) above, it is not accepted that you would be subjected to any real risk of torture if you return to India for the following reasons:-

(a) As mentioned in paragraph (A) above, there was no severe pain or suffering inflicted upon you and no official involvement, consent or acquiescence in any of the claimed acts done by your villagers and Sikh activists in India. Furthermore, you have neither put forward a case that you would be subjected to torture by any public officials or authorities upon your return to India. That being the case there is no basis upon which it may be suggested that you would be subjected to a risk of “torture” within the definition under the Convention upon your return to India. …

(f)  The Indian government has taken significant measures to deal with communal violence and to protect religious minorities.  Some perpetrators of religious violence against Christians have also been prosecuted for their actions.  There is no evidence to suggest that reasonably sufficient protection will not be provided by the Indian government should you being subjected to a risk of being harmed by the villagers and Sikh activists as claimed upon return to India. …”

40.In the Notice of Petition, the instructions given to a petitioner reminded him or her to include all details in the petition.  It further stated that an applicant would only be informed of the relevant details if an oral hearing is required.  Otherwise, the adjudicator would make a decision (viz without any oral hearing) basing on relevant information available.  Thus, a petitioner is put on notice that there might not be any oral hearing or further chance to supplement the information put to the adjudicator.

41.In his Petition, the Applicant set out his grounds of petition in his native language.  A copy of English translation of those grounds was prepared.  He did not add any material information with regard to Requirement (d).

Our analysis on the oral hearing challenge

42.It is against such background that we must consider whether the high standards of fairness in the present case required the Adjudicator to hold an oral hearing before determining the Petition.  To be fair to the Applicant, the Adjudicator appeared to have reached her decision on a number of grounds.  However, as the Judge pointed out at the hearing, at least one of the bases for her determination was the failure on the part of the Applicant to satisfy Requirement (d).  This is clear from paras 13.10 and 17 of the Adjudicator’s Decision:

“13.10   The Petitioner has admitted that he does not know who is responsible for the posters, but it is clear that whoever that person(s) is, the Indian authorities are not responsible.  The posters are not the work of anyone in an official capacity.  It was explained in paragraphs 5 – 9 above, any “severe pain or suffering” will only count as “torture” if it is inflicted “in an official capacity”.  Just like the case of GRB v Sweden, there is no evidence that anyone in an official capacity is involved in the alleged ill-treatment of the Petitioner by putting up the posters.  Without any evidence against a person acting in an official capacity, the Petitioner’s claim must fail. …

17.       Even if all that has been alleged by the Petitioner is accepted, that is, he has received death threats in the form of posters; his father’s throat was slit by unknown assassins; his mother and brother are shunned by the people in their village; the Petitioner’s case still falls short of the threshold set by Article 1 of CAT.  It may be that the Petitioner will find life difficult and unpleasant for a while if he returns to India.  He might be ostracized by friends and neighbours because they cannot understand or accept his religious conversion.  But there absolutely no evidence has been adduced to indicate that he will be ill-treated or persecuted by anyone in authority.  In the circumstances I find that there are not grounds under CAT for believing that the Petitioner will be at risk of being subjected to torture in the CAT sense if he is refouled to India.  His petition is accordingly dismissed.”

43.For the purpose of this appeal, we shall proceed on the basis that if the Adjudicator was not entitled to determine the Petition without an oral hearing in respect of Requirement (d), the Applicant’s application for judicial review is reasonably arguable.

44.In respect of the Adjudicator’s determination based on Requirement (d), the Judge was correct in saying that it was not based on credibility.  The Applicant had not put forward any materials before the Adjudicator to bring himself within the scope of Article 1(1) of the CAT. The Judge’s observation that the determination was not based on credibility must be read in this light. We do not think there is any merit in Mr Parker’s criticism of the Judge in this regard by reference to the adverse comments of the Adjudicator on credibility.

45.In his skeleton submissions, Mr Parker repeated essentially what he had submitted before the Judge to contend that the high standards of fairness required the Adjudicator to hold an oral hearing in the instant case.  He drew attention to the fact that the Applicant was not legally represented and that the information given in the CAT questionnaire and the Petition were “home-cooked and of very poor quality”.  He submitted that it should be clear from the documents that the Applicant did not appreciate what the main points against him were and fairness dictated that he ought to have had his attention drawn to the relevant aspects of the case. Counsel also criticized the Adjudicator for referring to the authority of GRB v Sweden Communication No 83 of 1997 without giving any opportunity to the Applicant to comment on it.

46.Mr Parker relied on several authorities to support his contention. In particular, he cited the following dicta of Lord Bingham in R (West and Smith) v Parole Board [2005] 1 WLR 350 at para 35:

“ 35 The common law duty of procedural fairness does not, in my opinion, require the board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board’s task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.”

47.In the context of CAT claims, he referred us to the judgment of Saunders J in FB v Director of Immigration [2009] 2 HKLRD 346 at para 211:

“221. The relevant considerations in determining the right to legal representation laid down in WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (see para.132 above), are equally applicable to the question as to whether or not there should be an oral hearing. Of those the most significant is the importance of the decision to the petitioner’s liberty or welfare. It may sound repetitive but I say again, the decision of a Convention claim is a momentous decision to an applicant. It affects his liberty and welfare and his right not to be subject to torture. Adopting and amending what was said in WABZ v Minister for Immigration and Multicultural and Indigenous Affairs at para.71, to the context of an oral hearing, in most cases of a petition, the relevant factors will favour the view that an oral hearing should be permitted as an aspect of procedural fairness.”

48.We have read all the authorities cited to us, including those we have not set out above.  We do not find it necessary to go through them at length. It was not suggested in any of them that there is an absolute duty to hold an oral hearing in processing a CAT petition.  We do not think that there can be any dispute to the proposition that when dealing with procedural fairness, there is no universal set of standards and one must have regard to the facts and circumstances of each case: see the judgment of the Chief Justice in Prabakar and the judgment of the Chief Judge in TK quoted above.  Lord Mustill’s exposition on the common law principles of procedural fairness in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531 at p.560 have often been cited. Proposition (3) is as follows:

“The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.”

49.As observed above, this is not a case where the Applicant had not been afforded any oral hearing.  Interviews had been conducted by immigration officers. This is part of the context of the determination of the Petition.

50.Whilst it is correct, as observed by Saunders J, that the determination of a CAT petition is important in terms of the liberty and welfare of a petitioner and his right not to be subject to torture, there are other relevant facts and circumstances which must also be taken into account in assessing whether the high standards of fairness in a particular case require an oral hearing to be held.

51.In FB, Saunders J referred to what was said in the Australian case of WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271 in the context of the issue of legal representation and applied it to the context of the issue of oral hearing (see para 211 of the judgment in FB).  With respect, though some factors identified in the former context could be relevant to the latter context, we do not think one can simply carry the considerations in one context to another.

52.In respect of the question of oral hearing, the Judge referred to the decision of Centeno v Director of Immigration HCAL 50 of 2012, 9 May 2012.  The court discussed the relevant considerations at paras 10 to 19 of that judgment. We draw attention to paras 12 to 15:

“12.   After the decision of FB v Director of Immigration a new practice has been implemented.  In the latest version of the Notes for Adjudicators for handling petitions, there is a section dealing with oral hearings.  Paragraph 11.1 says:

“The adjudicator assigned to handle a petition shall review the case based on available information and decide whether to conduct an oral hearing or whether the petition is to be handled by means of a paper review. An oral hearing may be dispensed with where the adjudicator is satisfied that the petition can be justly determined on the papers. In deciding whether an oral hearing is needed, the adjudicator will take into account the circumstances of the case, including but not limited to considerations that all relevant evidence has been presented, and the determination of the facts shall be based on clear and cogent reasons.”

13.   Paragraph 11.2 refers to some matters which normally suggest there should be oral hearing.  The matters are as follows:

(a)  there are credibility issues crucial to the decision of the petition which were not adequately addressed during the interviews or supported in the assessment by the Director;

(b)  new evidence is raised in the petition stage that is relevant to the decision, including any change in condition in the claimant’s country of origin, and clarification via correspondence is inexpedient or insufficient, and that holding of an oral hearing is therefore required;

(c)  an apparent breach of procedural requirement has occurred which could have limited the ability of the claimant to establish his claim, for example, inadequate interpretation, denial of the opportunity to present relevant evidence.

14.   Therefore, as a matter of procedural design for dealing with petitions, there are provisions for oral hearing.  But the matter is in the hands of the adjudicator, and the adjudicator is to make a decision as to whether there should be an oral hearing by reference to the criteria set out in these paragraphs.

15.   In my judgment, the system is in accordance with the law.  One has to remember that the decision of the Director as well as that of the adjudicator are administrative decisions.  In the context of administrative decisions, under the common law there is no absolute right to oral hearing. …”

53.It has recently been applied by Au J in ST v Betty Kwan HCAL 60 of 2012, 8 March 2013, paras 39 to 42.  We understand that the decision of Au J is under appeal. But we have not heard any submissions from Mr Parker which cast any doubt on the approach adopted in Centeno. 

54.As we see it, the Centeno approach is consistent with principles laid down in Prabakar and TK.            

55.Though the Applicant had no legal representation when he advanced his CAT claim before the immigration officer and the Adjudicator in his Petition, his attention had been brought to the meaning of “torture” in Article 1(1) in the CAT questionnaire and there were questions in it specifically related to Requirement (d).  Further, the immigration officer had asked him to elaborate on the information pertaining to Requirement (d).  This is an Applicant who was reasonably well-educated and had an adequate knowledge in English to understand and give his answers in the questionnaire.  There is no evidence from him as to his ignorance or difficulty in understanding what had been explained in the questionnaire or what had been said in the written decision of the Director. As mentioned, that decision had clearly pinpointed the difficulty in his case in terms of Requirement (d).

56.We are not impressed by Mr Parker’s suggestion that it can be inferred from the documents that the Applicant did not have a clear understanding of what had been held against him.  What had been set out in the Notice of Determination could not have been plainer and the lack of evidence to suggest that there was any official consent, involvement or acquiescence in the threats had been mentioned several times.  The Petition of the Applicant referred to the possibility of internal relocation stated in the Notice of Determination.  This shows that the Applicant had a good understanding of the grounds for the Director’s holding against him. The Applicant did not say in his affidavit in support of the application for judicial review that he did not appreciate that one of the grounds for rejecting his CAT claim was his failure to satisfy Requirement (d).

57.The high standards of fairness do not require the Adjudicator to play the role of an adviser to the Applicant to cover every possible gap in the Applicant’s case.  Provided that the Adjudicator had reasonable grounds to believe that the Applicant was aware of the meaning of “torture” and had a fair opportunity of presenting the whole of his case in the materials placed before the Adjudicator, there is no obligation on her part to seek further clarification or elaboration unless it is apparent that something had gone amiss or some salient points had been overlooked.

58.In this connection, it is apposite to reiterate the observation of Hartmann JA in CH v Director of Immigration [2011] 3 HKLRD 101 at paras 39 and 47:

“39. The duty lay on the Director to investigate the relevant facts as presented to him by a claimant and, to the extent that the claimant may himself have suffered torture, he was himself the primary source of such relevant facts …

47. … it is relevant, I believe, to observe that, at the very least, the exercise of determining whether a claim under article 3(1) of the Convention is valid must be one of joint endeavour.  It is not for a claimant, having stated a claim, to simply sit back and require the Director to disprove it.  If a claimant believes that he may still bear marks of recent torture which, unless recorded, are likely to fade and be gone, then he must be expected at least to state the fact so that the Director’s officers are put on notice.”  

59.These observations were made in respect of physical evidence of torture.  We are of the view that the same applies in respect of material facts supporting a claimant’s belief that there was state involvement or acquiescence in the risk or threat of torture posed by a non-state agent.  The burden being on a claimant to prove a case of torture within the meaning of CAT, he or she must put forward some factual basis to support such belief before the Director can be expected to investigate on it.  Such factual basis must be personal to him or her either in terms of knowledge or experience because, as it has been said repeatedly in CAT jurisprudence, the mere existence of a consistent pattern of gross, flagrant or mass violations of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return. It has to be shown that he will be personally at risk, see for example TK supra, at para 29.

60.Given what had been set out in the questionnaire and the Notice of Determination on the meaning of torture under Article 1(1) and the opportunities given to the Applicant to clarify or elaborate on his case in respect of Requirement (d), in light of what was said in the Petition, we do not think the high standards of fairness required the Adjudicator to hold an oral hearing to conduct further probing on this point.  This is not a case where something had clearly gone amiss or where it was apparent that an applicant had further documents to produce which might support his claim in terms of Requirement (d).  As reminded by the Court of Final Appeal in Prabakar and reiterated by the Chief Judge in TK, we are conscious of the need to have regard to the vulnerability of torture claimants in terms of the facility and support to be given to them in putting forward their claims.  However, even with that in mind, on the facts of this case, we do not find anything amiss in the procedure adopted by the Adjudicator.

61.The Petition did not raise any credibility issue in respect of Requirement (d).  Nor did it put forward any new evidence in that regard. There was no suggestion of breach of any procedural requirement at the first tier of consideration the CAT claim by the Immigration Department. On the facts and circumstances of this Petition, even bearing in mind the interest at stake, we do not think the Adjudicator erred in not affording the Applicant an oral hearing in respect of her decision based on Requirement (d).

62.There is also no merit in Mr Parker’s criticism towards the Adjudicator’s reference to GRB v Sweden.  The only proposition relied upon by the Adjudicator in connection with that authority was the need to have evidence to prove official involvement.  That had been made known to the Applicant in the questionnaire in the explanation on the meaning of “torture”.  His attention was further drawn to this requirement in the Notice of Determination of the Director.

63.We do not think the oral hearing ground is reasonably arguable.  The Judge was correct in refusing to grant leave in respect of the same.

The self-incrimination challenge

64.Coming now to the self-incrimination challenge, Mr Parker submitted that the Applicant had not been given adequate protection in terms of his right against self-incrimination in the process leading to the decisions under challenge.

65.There is no suggestion of any pending prosecution of the Applicant for any immigration offences. From the information given, he had arrived in Hong Kong through lawful means.  In October 2005, he had been convicted of breach of condition of stay because he took up employment whilst he was only permitted to enter and remain as a visitor. He had served his sentence with regard to that offence before he made his CAT claim.  A deportation order was made against him on 21 December 2005.  He had been convicted of other offences which are not immigration offences.  He lodged his CAT claim on 1 March 2006. After he had served a sentence in respect of another offence on 17 October 2006, he was transferred to the custody of the Immigration Department.  He was released on recognizance on 18 July 2007.  

66.Mr Parker did not specify in his submissions what risk the Applicant may face in terms of self-incrimination based on the information given by him in the CAT claim.  Despite that, counsel submitted that there is a systemic lack of protection against self-incrimination in the existing CAT process.  In that connection, Mr Parker relied on the judgment of Saunders J in FB, supra at paras 150-151.  For the purpose of this appeal, it is not necessary for us to consider whether in those paragraphs Saunders J was only giving some reasons for the need to have legal representation in CAT claims as opposed to a free-standing ground for criticizing the CAT process before him. For the reasons given below, neither is it necessary for us to discuss the soundness of the advice at para 151.  We understand the matter will be debated in another case. It suffices for us to say here that even assuming that the advice is legally sound, the Applicant cannot succeed in this challenge.

67.On the materials before us we do not see how this so-called systemic challenge could have any bearing on the challenge to the decisions in question.  There is no suggestion that because of the risk of self-incrimination, the Applicant had refrained from providing relevant information to the Director or the Adjudicator.  Further, as mentioned above, there is simply no risk of self-incrimination on the facts of the present case.  On the deficiency in the Applicant’s claim which the Judge focused upon, viz. the lack of evidence to satisfy Requirement (d), Mr Parker has not been able to explain how the furnishing of any information in that regard would incriminate the Applicant in Hong Kong.

68.Mr Parker relied on some authorities to submit that the right against self-incrimination can be relied upon even though no criminal proceedings have been brought.  But those cases concern the legality of proceedings which compelled a person to give evidence or give disclosure with the sanction of fine or imprisonment:  Rank Film Distributors Ltd, supra, Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170; Martinnen v Finland  European Court of Human Right Application No 1923/03, 21 April 2009;  Funke v France (1993) 16 EHRR 297; Shannon v United Kingdom (2006) 42 EHRR 31.

69.There is no compulsion in the CAT questionnaire for any answer to be given.  And there is nothing to bar a claimant from raising privilege against self-incrimination in giving his answers in the questionnaire.  There is no suggestion that a CAT claim will not be processed if an applicant pleads privilege against self-incrimination in respect of some of the questions.  At para 1 of the Guidelines for completion of Questionnaire, it was stated that if an applicant fails or refuses to return the questionnaire as required without reasonable excuse, “your claim will be determined on the basis of all available information and may be rejected if you have not provided sufficient material to substantiate your claim.” If a plea of privilege against self-incrimination is raised, it would be a matter for the Director and the adjudicator to assess to what extent the plea provides a sufficient justification for not answering a particular question and whether it is necessary to obtain relevant information by other means in light of materials already supplied by a claimant. 

70.In the present case, none of these had occurred. And for the reasons given, on the facts of this case, none of these could have occurred since no issue of self-incrimination could have arisen.

71.Mr Parker submitted that compulsion may not stem from any legal sanctions against refusal to give answers and it could take the form of the denial of a substantial benefit. He submitted that the withholding of answers on the ground of privilege against self-incrimination may prejudice a claimant’s CAT claim and this would be sufficient to constitute compulsion.

72.We do not accept this submission. First, there is no evidential basis for suggesting that a CAT claim would be prejudiced if an applicant justifiably pleads privilege against self-incrimination.  As mentioned, the Guidelines stated clearly that the Director would process the claim on the materials before him and if there is a reasonable basis for pleading such privilege, no adverse inference can be drawn against such applicant.  There is no denial of substantial benefit.  Second, none of the authorities cited by Mr Parker go as far as he suggested.  All the cases cited, and he accepted this, where it was held that there was an infringement of the privilege against self-incrimination even before the use of the objectionable evidence in criminal proceedings are cases where legal sanctions were imposed for the withholding of answers.  This is simply not the case here.

73.Third, Mr Parker was at pains to explain that he did not say that such questions could not be asked, but that they could only be asked when there is statutory protection conferred on those providing the answers in that no use can be made of such statements in subsequent criminal prosecutions against them.  But as explained later, the common law and Article 10 of the Hong Kong Bill of Rights have already conferred that protection on a CAT claimant.  We cannot see any material distinction between these protections and the statutory protection proposed by Mr Parker. 

74.In the post-FB regime, the Guidelines for Completion of Questionnaire, para 6 adopts the advice of Saunders J and states as follows:

“In addition, nothing at all said by you will be used against you in any subsequent criminal proceedings of any nature save an attempt to pervert the course of justice and/or making of false reports etc. to a member of Immigration Service.”

75.That statement in the Guidelines constituted an inducement given to an applicant in completing the questionnaire and in answering further questions from the immigration officers (who must be regarded as persons in authority) in the process.  As a matter of law, the statements would not be admissible as evidence in subsequent criminal proceedings other than those specified in that paragraph.  This exclusionary principle does not hinge on the exercise of discretion by a judge, it is a matter of law and admissibility which obliges the court to exclude involuntary statements under the common law (see R v K [2010] QB 343 at para 43) and thus ensures a fair trial under Article 10 of the Hong Kong Bill of Rights (see Koon Wing Yee v Insider Dealing Tribunal at para 81).  This provides the answer to the concern of Lord Wilberforce in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at p.442 that a discretion to exclude evidence could not be a substitute for the privilege against self-incrimination.

76.It is no answer to that analysis to suggest, as Mr Parker did, that the Secretary for Security had no power to bind the Secretary for Justice in terms of the conduct of a prosecution.  Even if a prosecution is brought, the court will, as a matter of law, exclude such evidence.

77.Thus, the Judge was correct in holding that the statements would not be admissible in Hong Kong in a subsequent criminal trial.  This is sufficient to dispose of the self-incrimination challenge.

78.We shall deal briefly with the prosecution policy.  Incidental to the obligation of the Hong Kong Government under CAT as expounded in Prabakar, some protections should be given to torture claimants in terms of prosecutions in respect of immigration offences in relation to their entry or remaining in Hong Kong for the purpose of advancing their CAT claims, see Iqbal Shahid v Secretary for Justice [2010] 4 HKLRD 12 at para 3.  The relevant prosecution policy as set out in Legal Circular No 4 of 2007 was aimed at giving such protections and our courts will ensure that such policy is correctly applied, see paras 10 to 21 and 36 of Iqbal Shahid.    

79.As observed by Ma CJHC (as he then was) at para 36(b):

“In short, the policy is to grant the benefit of an immunity or temporary immunity only in respect of the immigration offence connected to the making of a claim for asylum or to be treated as a torture claimant (such as remaining in Hong Kong without the authority of the Director of Immigration) but not for any other offence.”

80.Mr Parker submitted that such protection is inadequate because:

(a) The prosecuting authority has a residual discretion to depart from that policy and he cited RV v Director of Immigration  [2008] 4 HKLRD 529 in that regard;

(b) The policy did not address the risk of self-incrimination in respect of other offences; and

(c) The protections under the policy cease upon the rejection of the CAT claim.

81.We do not accept Mr Parker’s submissions on the inadequacy of the policy.  We do not see any justification for requiring a wider protection as an incidence of the Prabakarobligation.  In particular, we do not see why in terms of the obligation to process a CAT claim in accordance with the high standards of fairness that there should be immunity given with regards to offences not relating to the entry or remaining in Hong Kong. Nor do we see any justification for extending the immunity to persons who are not genuine torture claimants after the proper processing and rejection of their invalid claims. Since they are not torture claimants, they could not rely on the Prabakar obligation to shield themselves from prosecutions in respect of whatever offences they have committed in Hong Kong.

82.The claimant in RV was prosecuted for an offence other than simply for his unlawful entry or remaining in Hong Kong. It was a decision on the special facts of that case which has no application in our case.  The judgment must also be read subject to the subsequent Court of Appeal decision in Iqbal Shahid.

Disposition

83.For these reasons, we do not think the application for judicial review is reasonably arguable.  The Judge was correct in refusing leave. The appeal is dismissed accordingly.   The Applicant’s own costs are to be taxed in accordance with Legal Aid Regulations.

Mr Timothy Parker, instructed by John M Pickavant & Co, for the Applicant/Appellant