Mallawa Arachchige Amitha Priyanganie Mallawa Arachchi v. Wesley Wong

HCAL 1/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1 OF 2014

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Before: Hon Zervos J in Court

Date of Hearing: 21 February 2014

Date of Written Submissions: 21 July 2014

Date of Decision: 8 September 2014

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Introduction

1.This is an application for leave to judicially review the decision of the adjudicator dated 17 April 2012 made on the petition of the applicant in respect to the decision of the Director of Immigration rejecting her claim under Article 3 of the Convention against Torture and other Cruel, and Inhuman or Degrading Treatment or Punishment (the Convention or CAT) that there are substantial grounds for believing that she would be in danger of being subject to torture if she returned to her country of origin.

2.The challenge is made against the decision to consider the petition on the papers without an oral hearing and the decision to dismiss the petition.

Preliminary matters

3.There are three matters in relation to this application that I need to mention that have come up frequently in applications for leave to judicially review failed petitions of torture claimants.  The first is the delay in filing the application.  The second is the numerous grounds and voluminous material filed in support of the application. The third is the nature and substance of the grounds that form the basis of the application.

4.By way of background, the Form 86 was filed on 31 December 2013 and was 113 pages in length.  It was accompanied by two affirmations from the applicant with 5 Lever Arch Files of exhibits consisting of over 2,000 pages.  A lot of the material is repetitious or irrelevant to the heads of judicial review.

(a) Delay in filing the application

5.There was inordinate delay in the filing of this application.  It is required that an application for leave to apply for judicial review be made promptly and pursuant to Order 53, rule 4 of the Rules of the High Court “within three months from the date when grounds for the application first arose”.  The court has discretion to extend the period within which the application should be made, but delay that is inordinate and inexcusable is likely to result in the application for leave to apply for judicial review being refused.  In deciding whether to grant an extension of time to file an application, the court will examine the reason for the delay, and whether it provides a justifiable excuse for it.  As noted in the comments of Au J in Mui Mei Fung v Secretary for Justice for Commissioner for Labour, HCAL 145/2013, 16 January 2014, unreported, at paras 24‑34, a court needs to be satisfied that there was good reason for the delay to justify an extension of time to pursue the case and where it involved the late grant of legal aid that was one factor to be considered as to whether or not that justifies an extension of time.

6.A failure to act promptly in the filing of an application for leave to apply for judicial review can be fatal and where legal aid or assistance is sought it needs to be applied for and attended to expeditiously. Any inexclusable inaction or delay in relation to it will count against a grant for an extension of time. The late granting of legal aid and assistance is not on its own a sufficient basis for an extension of time.

7.In this case, the relief sought is an order of certiorari in respect of the adjudicator’s decision made on 17 April 2012.  That was about 18 months prior to the filing of the application.  It is claimed that the applicant attended the Legal Aid Department on 24 April 2012 to apply for legal assistance to seek leave to judicially review the adjudicator’s decision but it was not until 6 August 2012 that legal aid was granted.  This was followed with the assignment of solicitors and counsel to the case on 10 August and 7 September 2012 respectively.  On 21 August 2012, the solicitors requested full disclosure of the applicant’s CAT file which was provided on 24 August 2012. There was a request for a Sinhalese interpreter to assist the applicant in preparing her application.  There were also further requests for disclosure in relation to the petition and other related documents that had not been included in the material previously supplied. The process continued for over a year with little or any explanation given for the delay, except that the applicant’s legal representatives were awaiting court decisions and the provision of the further disclosed material which had been requested.

8.It seems to me that there must have been a basis for the grant of legal aid and that would have contained the grounds with supporting information and material to justify an application for leave for judicial review.  Yet it took more than a year to formulate the basis for the judicial review and put the necessary papers together to file the application.  A reason for this may be due to the length and prolixity of the application and the numerous and broad grounds of complaint.

9.The contents of the application and the papers that have been assembled in support of it in quite a number of instances are irrelevant or inappropriate for the purpose of an application for leave to apply for judicial review.  I will say more about this later but it seems to me that it has been prepared more on the basis of a general appeal.

10.I have decided to grant an extension of time to the applicant to file the claim form as I consider the elapse of time that has occurred is due to no fault of the applicant, as it appears to have mainly been caused by the awaiting of decisions and materials unnecessarily when adequate information and materials were available to draft and file a suitable claim on behalf of the applicant. The grounds of judicial review deal with matters that could have been appropriately prepared and addressed in a claim soon after the adjudicator’s decision was handed down.  I also base my decision on the interest at stake and the issues involved, especially in light of the decision of ST v Betty Kwan and ors, CACV 115/2013, 26 June 2014, unreported (ST), and the import of judicial review proceedings in resolving the issues in question. 

11.Since the hearing of the leave application the Court of Appeal handed down its decision in ST which addressed the current controversy over the holding of oral hearings in deciding petitions of failed CAT claims.  In ST the Court of Appeal also addressed the country of origin information in relation to Sri Lanka that was prepared by the UNHCR and that was contained in two English cases. The Court of Appeal analysed this material and found that the UNHCR information was general and sketchy whereas the two English cases addressed in more detail the risk of torture to Sri Lankans, particularly those of Tamil ethnicity.  The decision of ST is of particular relevance to this case which is concerned with the issue of holding an oral hearing when deciding the petition and the country of origin information in relation to Sri Lanka.

(b) Prolixity of the application

12.The second matter concerns the numerous grounds and voluminous materials filed in support of the application.  In the end, a lot of the materials were either irrelevant or unnecessarily duplicated which nevertheless required the court to go through all the materials and digest them only to find that a small part was really relevant. That in itself causes delay and wastes valuable court time and resources.

13.The grounds and the materials filed in support of the application should be tailored to address the relevant matters and issues, and not be simply the filing of all materials relevant to the case as a whole.

(c) Nature of the grounds of the application

14.The third matter concerns the nature and substance of the grounds.  This is not an appeal.  It is a judicial review which is concerned with the legality rather than the merits of the decision, with the jurisdiction of the decision maker and the fairness of the decision making process rather than whether the decision was correct.  As required under Order 53, rule 1A, an application for judicial review includes an application in accordance with the Order or a review of the lawfulness of an enactment or a decision, action or failure to act in the exercising of a public function.  The determinative nature of the jurisdiction of a judicial review is also evidenced by the characteristic remedies it provides and this should guide the content and form of the claim to be filed with the court.

Procedural background

15.The process for making a CAT claim commences by the claimant completing a questionnaire.  It requires the claimant to provide a comprehensive range of specific background and personal information with respect to his or her claim.  It is made clear that the obligation is on the claimant to provide all relevant information and materials in support of the claim.  Whilst it firmly understood that the processing of a CAT claim is a collaborative effort by those involved and that every reasonable opportunity should be given to a claimant to establish his or her claim, the burden rests on the claimant to make good his or her claim for he or she is in the best position to know the nature and circumstances of the matters that support the basis of the claim.  This will involve within reason those responsible for determining the claim to make all necessary relevant and realistic inquiry and obtain any relevant information or materials.  It is clear that everyone involved in the processing of a CAT claim has an important role to play but the onus is squarely on the claimant to play his or her part in the process by submitting or identifying whatever information or materials they may have or are aware of at the relevant times and in the form requested.

16.The claimant filed a completed questionnaire dated 9 November 2011.  Briefly, she stated she came to Hong Kong on 26 or 27 June 2005 to escape from threats to her life and safety in Sri Lanka due to her party political activities and the abuse she received from her husband both physical and sexual, who was well connected to an opposing political party.  She had been physically abused and raped. She attached to her questionnaire copy letters supporting her claims of threats and abuse which included letters from a parish priest and a Member of Parliament.  They talk generally of the applicant’s involvement in a political party and the threats made against her but they also mentioned that she was seeking employment abroad to pay off debts or to support her family.  This stands in stark contradiction to her torture claim and it was extensively addressed in the first tier determination but not taken into account by the adjudicator in his decision.  It may very well be that the applicant has an explanation for it, or it may be that she has not, but it warranted giving her an opportunity to make representations in relation to it if it was an issue.

17.The applicant was interviewed on 30 January 2012 and it was explained to her that the purpose was to assess her claim and seek information from her and for her to provide any clarification or further information about her claim.  In the interview she had a legal representative with her.  I note that quite a lot of questions were asked of her about her claim and in particular about the letter from the parish priest which mentioned that she wanted to seek employment abroad.  She said this was due to a misunderstanding by the parish priest.  I also note that her claims of physical and sexual abuse and injury were documented.

18.On 14 February 2012, in a lengthy determination from the Immigration Department she was advised her CAT claim was rejected.  In a comprehensive assessment of her claim it was concluded that there was no real and foreseeable risk of torture and reference was made to the letters she had supplied where it had been stated that she went abroad to find employment which was inconsistent with her torture claim.  It would appear on this point she was disbelieved.

Grounds of review

19.Despite the prolixity of the submissions by counsel for the applicant, there are essentially seven grounds for judicial review.

20.The grounds of review cover a wide range of complaints both in relation to the determination by the Director of the CAT claim and the decision by the adjudicator of the petition.  A petition is a rehearing of the CAT claim and once decided the previous determination would not normally be the subject of judicial review unless it could be shown that a matter pertaining to the determination had a bearing on the legality or fairness of the decision or the decision making process of the petition.  Such circumstances would rarely arise, if at all, for a petition is a rehearing where the CAT claim is reconsidered and the claimant has the opportunity to submit any additional information or materials or make any submissions or representations in support of the claim.

21.The complaints as listed relating to the determination appear to be stand alone matters that did not have a bearing on the decision of the petition.  The failings or errors relative to the determination are only relevant as a basis for judicial review of the adjudicator’s decision where they become failings or errors relative to the petition or have consequence to the legality or fairness of the petition.

22.I will address each of the grounds of review and the supplemental submissions focussing appropriately on the decision of the petition and its processes and whether anything leading to the consideration of the petition had any effect on the legality or fairness of the decision and the decision making processes.

Ground 1: Decision to proceed on paper without an oral hearing was contrary to Brief Notes and high standards of fairness

23.In this ground of review it is complained that contrary to the briefing notes to adjudicators and the principles of high standards of fairness, the adjudicator proceeded on paper without an oral hearing.

24.Listed in support of this ground are three matters which it is argued would have warranted the holding of an oral hearing according to the brief notes.  First, there were credibility issues that were not adequately addressed during the screening interviews that were crucial to the claim.  Secondly, the applicant repeatedly sought to raise and submit new evidence in relation to country of origin information but was not assisted in this regard by her legal representatives or the Director.  Thirdly, breaches of the procedural requirements by her legal representatives and the assessor denied the applicant every reasonable opportunity to establish her claim.

25.In the supplemental submissions the applicant listed the following matters that in line with the analysis in ST warranted an oral hearing of the petition:

“(a) The Director of Immigration Determination was a long one;

(b) The Director of Immigration did not believe the Applicant’s story as a matter of credibility;

(c) The Director did not accept there was any real risk of torture if the Applicant was refouled to Sri Lanka;

(d) The Applicant petitioned against the Director’s Determination to an Adjudicator of the Petition Team of the Security Bureau;

(e) The Applicant had no lawyer so had no benefit of a lawyer representing her who drafted the Petition;

(f) The Applicant had no interpreter to assist her when she drafted the Petition;

(g) The Applicant has no Sinhalese version of the Director’s Determination;

(h) There had been de minimus COI at first instance and as well at the Petition stage

(i) Coi was wholly deficient in the screening and Petition stages;

(j) No Brief Notes for Adjudicators (paras 11.1, 11.2 and 15.1) and no Practice Directions (at paras 6.1 and 14.1) were considered;

(k) At screening stage torture claimant reminded in

(l) At screening stage Applicant asked for COI to support her case, but lawyer did no COI research;

(m) Applicant requested medical examination and DLS and lawyer failed to arrange such;

(n) In the Notice of Petition a reminder to include all details as a Decision may be made on information in Notice only.

(o) Adjudicator did not hold an oral hearing;

(p) Adjudicator made no mention of reasons for not holding an oral hearing;

(q) Decision made on paper;

(r) Adjudicator found no risk to Applicant as no state involvement;

(s) Adjudicator made such finding by cherry picking from a very small number of COI research; and

(t) Adjudicator found facts insufficient as a whole that there would be a personal risk to the Applicant;”

26.It is argued that the adjudicator to have proceeded with the petition on the papers and not by way of an oral hearing was contrary to high standards of fairness.  Whilst there is no absolute right to an oral hearing, it will depend on the particular circumstances of the case whether or not an oral hearing should have been held.  It is argued there were issues of credibility.  However, from the decision it is apparent the adjudicator accepted the applicant’s account of things and nowhere does he challenge her veracity or doubt what she has asserted or claimed.  It is also complained that he failed to provide reasons for not holding an oral hearing.  Whilst no reasons were given, it is apparent from the material supplied that an oral hearing will only be held if the circumstances warrant it.  It seems that the adjudicator decided there was no need to hold an oral hearing on the basis that the papers would suffice, that there was no issue of credibility and that the material provided all the information required to assess the applicant’s claim. 

27.The basis of the applicant’s claim is that she fears she will be killed by her husband and his friends from the Joint Party of Janatha Vimvkthi Peramuna and People’s Alliance (which later became the United People’s Freedom Alliance).  She claimed that her husband and his political colleagues were involved in a range of illegal activities through the political party.  Her husband kept on urging her to join the party but she refused.  She instead joined an opposing political party, the United National Party.  He physically and sexually abused her and threatened to kill her.  During the first tier screening, it was observed that there were inconsistencies in the applicant’s various accounts to support her torture claim and the manner in which she handled the refugee and torture claims which cast doubt over her claimed fear of torture. There were also letters from a parish priest and a member of parliament that stated that the applicant had left Sri Lanka to seek employment abroad.  These matters did not feature in the adjudicator’s decision.  He decided her claim without reference to these matters and accepting her account at its highest concluded that the requirements of the Convention had not been established.

28.It is submitted in the supplemental submissions that the applicant lacked legal representation at the petition stage and as a consequence did not advance her claim in an informed and full manner.  The applicant submitted a detailed statement dated 13 March 2012 in which she responded to questions raised in the determination about her claim and also took the opportunity to press and elaborate her case. 

29.It is claimed by the applicant that there were factual matters in dispute that an oral hearing would have more effectively resolved than written submissions which have limitations.  The adjudicator accepted the assertions of the applicant in assessing her claim but it is complained that he made wrong factual findings or omitted to consider relevant factual matters. The applicant has not specifically identified the factual matters or representations she would have made had an oral hearing been held.  However, she set out under the fifth ground of review what was submitted to be a multitude of factual errors, omissions and inferences that were speculative.  It may be on a more detailed examination these matters amounted to no more than a lack of detail in the summary by the adjudicator of the applicant’s background and history but a long list of factual matters have been identified that provide a reasonably arguable case for judicial review of the basis of the adjudicator’s decision.  In general terms the adjudicator summarized the factual basis of the applicant’s claim which did not detract from the overall theme of the applicant’s claim but if there were irrelevant considerations taken into account or relevant considerations that were omitted by the adjudicator this provides grounds for judicial review.  I am satisfied on some of the matters that had been listed there is a reasonably arguable case.

Ground 2: No reasons for not holding an oral hearing

30.In this ground of review it is complained that no notice was given by the adjudicator that he intended to proceed on the papers.  It is argued that this amounted to the adjudicator having unreasonably avoided an oral hearing and that he specifically failed to justify bypassing the obvious remedy to the procedural unfairness that the applicant complained had taken place during the screening process.  I do not consider this ground to be reasonably arguable.

Ground 3: Insufficient inquiry into country of origin conditions

31.In this ground of review it is complained that the adjudicator failed to carry out sufficient inquiry into the country of origin conditions.  In particular, it is complained that the adjudicator did not have regard to relevant and up‑to‑date country of origin information, whether of broad and general relevance, or focusing on a person fitting the profile of the applicant and could not possibly have arrived at a fair decision in dismissing her case.

32.There appears to be an arguable case on this ground given the exposition of the country of origin information in ST.

Ground 4: Decision made without full regard to the applicant’s supplemental statement

33.In this ground of review it is complained that the adjudicator made his decision without full regard to the applicant’s supplemental statement.  In support of this ground it is argued that the adjudicator made no references to any facts submitted in the applicant’s supplemental statement.  The adjudicator specifically referred to the further written submissions by the applicant of 13 March 2012 which he said he took into consideration in assessing the applicant's case.

34.I do not consider this ground to be reasonably arguable as the adjudicator deals with the applicant’s case overall, addressing where necessary specific matters or issues.  Where it may be relevant, is in the complaint that the adjudicator made mistakes or errors as to the facts and on this aspect I am satisfied there is a reasonably arguable case.

Ground 5: Failure to call for and consider medical and psychological reports

35.In this ground of review it is complained that the legal representatives of the applicant failed to advise the applicant of obtaining medical reports to support her claim in order to evidence the physical and psychological abuse she had suffered.

36.This ground is not reasonably arguable as it was accepted by the adjudicator that the applicant had been the subject of domestic violence and that she had been physically and sexually assaulted.  The issue that the adjudicator was concerned with was whether the actions of her husband involved the State’s consent or acquiescence.  The adjudicator found that it did not.  See Re JKF, HCAL 42/2013, 25 April 2014, unreported.

Ground 6: Adjudicator’s failure to rectify defects of the determination

37.In this ground of review it is complained that the adjudicator was made aware of numerous defects that took place in the first tier process which mainly concerned allegations against the legal representative of the applicant which he did not address or rectify.  The allegations against the legal representative concern the failure to take full and adequate instructions, to carry out full and adequate research, to advise and obtain medical psychological and psychiatric evaluations of the applicant and to appropriately prepare her when being questioned during the first tier screening interviews. I see no basis for this complaint from the material before me.  The screening interviews were comprehensive and the length and detail of the determination evidenced a full presentation of the applicant’s claim.  In any event, the petition is a rehearing where the adjudicator reconsiders the claim afresh.

38.It is claimed that the applicant was not provided with legal assistance after the determination was read out to her on 22 February 2012.  I have viewed the supplemental statement of the applicant dated 13 March 2012 which is comprehensive and detailed and suggests that it was prepared with assistance and with an appreciation of the issues involved.  This is a matter that needs to be addressed at the substantive hearing with appropriate supporting evidence to be filed with the court.

Ground 7: Decision was unreasonable.

39.In this ground of review it is complained that the adjudicator had failed to take into account relevant or mandatory relevant considerations and took into account irrelevant considerations or considerations not based on facts or facts not reasonably inferred.  This ground seeks to argue that various factual matters or issues relevant in the determination of the CAT claim were not properly considered or addressed by the adjudicator.  I have already found that certain factual matters and issues in relation to the country of origin information are reasonably arguable.

40.It is also complained that the adjudicator failed to consider State consent and acquiescence to the violence suffered by the applicant but as I have already noted this issue in relation to Sri Lanka was addressed in the case of Re JKF. In the context of the circumstances of this case I do not see that this complaint is reasonably arguable.

Conclusion

41.In order to obtain leave, the applicant has to show she has a reasonably arguable claim which enjoys realistic prospects of success.  I am satisfied that there is a reasonably arguable claim on the grounds that the adjudicator did not describe or address accurately certain factual matters or properly consider country of origin information, in particular that information contained in the two English cases which was only recently addressed by the Court of Appeal in the case of ST,and whether overall this case necessitated holding an oral hearing.  Accordingly, I grant the application to extend time and grant leave to the applicant to make application for judicial review of the adjudicator's decision on these grounds.

Mr Robert Tibbo, instructed by Ho Tse Wai, Philip Li & Partners, assigned by the Director of Legal Aid, for the applicant