R v. William Lam, Adjudicator

CACV 212/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 212 OF 2013

(ON APPEAL FROM HCAL NO. 90 OF 2013)

________________________

________________________

Date of Written Submissions: 28 January 2015

Date of Judgment: 11 February 2015

________________

JUDGMENT
________________

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

1.The Applicants came from Indonesia. Their identities are protected by anonymity orders granted in legal proceedings. They are a family of four: father and mother plus two sons. They are members of the Ahmadiyya faith which, counsel said in their submissions, has been banned and persecuted in Indonesia. According to the Form 86 filed on behalf of the Applicants in the proceedings below, since his conversion to Ahmadiyya, the father had participated in organizing Ahmadiyya activities and proselytised actively. Due to the escalation in attacks, the father fled to Hong Kong in 2007. In 2008, the mother and the 2 sons also came to Hong Kong.

2.After their respective arrivals in Hong Kong, they wished to retain the service of Mr Mark Daly to pursue their claims under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [“CAT”].  However, the Duty Lawyer Scheme [“DLS”] decided to assign another lawyer to act for them.  They, with the assistance of Mr Daly, challenged that decision.  That challenge led to judicial review applications against the decision of the DLS.  We are not concerned with that challenge in this appeal.   

3.Due to the dispute on their legal representation, the Applicants did not provide as much information as they should have to the Director of Immigration for their CAT claims.  Instead, Mr Daly repeatedly requested the postponement of the processing of their cases.  After a series of correspondence, there came a point in time in 2012 when the Director considered that the matter should not be further delayed.  Despite repeated reminders on time limit for submission of information, including Questionnaires and the consequence of the failure to comply with such time, not much information had been filed on behalf of the Applicants. On 17 August 2012, the Director gave notice to the Applicants (through Mr Daly) that he would proceed to determine their CAT claims on the basis of available information.  Brief and sketchy information of their claims was given by Mr Daly in a letter of 27 August 2012.  The relevant part of the letter reads:

“ We note that R and his family’s claim arises from their religious background as Ahmadis and/or R’s involvement in the Ahmadi organization, “Jemaat Ahmadiyah Indonesia”, and R’s activities in disseminating Ahmadi teaching to youths and other persons.  Given R’s position and he and/or his family’s activities in the Ahmadi community in Indonesia, he fears he and his family will be targeted for persecution and torture upon return.

Without prejudice to the Claimants’ position that the screening of their claim should be adjourned (which they maintain), the Claimants reserve the right to be interviewed on their torture claim and to provide further information, submissions and evidence with respect to their claim.”

4.In that letter, Mr Daly also persisted in the request for adjournment.  

5.On 13 September 2012, the Director informed the Applicants through Mr Daly that the request for adjournment was refused.  On 14 September 2012, the Director issued a Notice of Determination rejecting the CAT claims of the Applicants.

6.The Applicants, through Mr Daly, filed a petition against the determination.  In the letter of 27 September 2012, Mr Daly reiterated that he only acted for the Applicants in their challenge by way of judicial review against the decision of the DLS and his firm was not acting for the Applicants in the petition.  He stated that the Applicants had not been advised on the merits of the petition. He requested that the petition should not be proceeded with until the question of legal representation had been settled.

7.On the same day, a master granted legal aid to the Applicants for the challenge of the decision of the DLS by way of judicial review.  Mr Daly wrote to the Petition Team of the Security Bureau on 8 October 2012 informing them of the imminence of that judicial review application and also the challenge to the Director’s decision to proceed with the processing of the CAT claims under such circumstances.

8.By a further letter of 25 October 2012, Mr Daly further requested that the Adjudicator, Mr William Lam, be apprised of the progress in the matter.  At the last two paragraphs of that letter (which Mr Daly requested to be placed before the adjudicator), he said:

“ At present, the Petitioners have not had the benefit of legal representation on the first instance screening nor at the Petition stage. In addition, given the intended applications for leave to seek judicial review of both the DLS decision on assignment and the TCAS decision at first instance, it is likely that further assessment on petition will be stayed by the Court.

In short, to proceed with determining the Petitioners’ claim at this time will only compound the unfairness of the earlier proceedings resulting in a grave injustice and a waste of public resources.”

9.Unbeknown to Mr Daly, the Adjudicator had actually reached a decision on the petition on 24 October 2012 without inviting further representations from the Applicants or giving them an oral hearing. The Petition Team informed the Applicants of the determination by a letter of 26 October 2012.  At paragraphs 9 and 10 of the Determination, the Adjudicator, no doubt based on very limited information available to him, summarised the applicants’ claims as follows:

“ Basis of the Petitioners’ claim

9. In short, the Petitioners say they will face harm and torture because they follow the Ahmadi religious faith, and “Mainstream Islam” people are antagonistic to Ahmadis.

10. P1 and P2 were married in 1992 and resided in Jakarta.  A year later P1 converted to the Ahmadiyah faith, but (as stated above) Mainstream Muslims were against the Ahmadis.  In an incident in 2005 in Bogor (not in the Petitioners’ home town but 60 km south of Jakarta), houses belonging to Ahmadis were attacked and Ahmadi mosques were burned down.  Then on 1 June 2008, P2 and other Ahmadis were in the National Monument Square in the afternoon celebrating the anniversary of Pancasila ideology with other religious groups, including Christians, when members of the Islamic Defender Front and Mainstream Islam people ambushed the gathering, attacking the group with stones and bamboos. The assailants pulled/twisted P2’s arms and clothes and asked why she had become an Ahmadi Muslim.  P2 does not say she had sustained any injury in this incident, but she felt unsafe afterwards, especially when Ahmadi houses were burned down and her sons P3 and P4 faced discrimination at school, and so she decided to take them with her to Hong Kong on 16 July 2008.  Of course that was when P1 was already in Hong Kong.”

10.In these proceedings, the Applicants sought leave to apply for judicial review in respect of the determination of their CAT claims.  Leave was refused by Anthony Chan J on 7 October 2013 after a hearing on the same day.  This is the appeal against the refusal of leave.

11.On 28 October 2013, the court gave directions for the service of notice of appeal to the Putative Respondent and putative interested party.  On 7 January 2015, the court gave directions to the Putative Respondent and putative interested party to indicate their respective stance in the appeal.  After that, the Putative Respondent indicated that he would take a neutral stance and sought to be excused from attending the hearing of the appeal.  Senior Government Counsel acting for the putative interested party [“the Director”] also indicated that the Director did not seek to take an active role in the appeal and did not intend to appear at the hearing.    

12.In light of these developments, and mindful that this is an appeal against the refusal of leave (as opposed to an appeal against a substantive decision in a judicial review), pursuant to the directions of 7 January 2015, to facilitate the expeditious, economical and just disposal of the appeal the hearing date of the appeal was vacated and written submissions were ordered to be filed by the Applicants for the disposal of the appeal on papers.

13.Pursuant to those directions, Mr Dykes SC and Mr Deng lodged skeleton submissions on behalf of the Applicants for this court’s consideration.

14.Irrespective of the stance of the putative respondent and the stance of the Director, the Applicants bear the burden of persuading this court that the appeal should be allowed.

15.For the purpose of this appeal, though several grounds were raised we are of the view that the crucial issue is whether the Adjudicator had dealt with the Petition fairly in accordance with the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.  After reading the submissions of Mr Dykes SC on behalf of the Applicant, this court decides to allow the appeal on paper. 

16.At the time when the judge considered the matter, he did not have the benefit of the judgment of this court in ST v Betty Kwan [2014] 4 HKLRD 277.  It that judgment, this court reviewed the position on procedural fairness in the processing of a CAT claim, in particular the importance of adopting a fair procedure to achieve a just result.  It can hardly be disputed that a very important facet of a fair procedure is a fair opportunity being given to the Applicants to present their case to the Adjudicator.  This court stressed that whether an oral hearing should be afforded must depend on the relevant circumstances and a number of matters were highlighted in that judgment.  

17.Applying the approach laid down by this court in ST v Betty Kwan to the present case, it is reasonably arguable that the Adjudicator should have held an oral hearing in the circumstances of the present case for the following reasons:

(a) From the letters written by Mr Daly to the Director and the Petition Team, it  is reasonably arguable that the Adjudicator should be aware that the Applicants had not placed before the Adjudicator all the materials or information they wished to rely in support of the petition; 

(b) Even though the Applicants did not have any right to delay the process, it is reasonably arguable that against such unusual circumstances, in view of the high standard of fairness required for proceedings of this nature, the Adjudicator should at least give a further warning to the Applicants that he intended to proceed with the substantive determination of the petition before he actually did so;

(c) Though we may not have the full picture before us as to what materials the Adjudicator had considered in the making of his determination, it would appear from a comparison of the information given in the Form 86 and the summary of the claims in paragraphs 9 and 10 of the Determination that more details could have been supplied by the Applicants if an oral hearing was held.  Due to the limited information placed before him and the special circumstances in terms of the dispute on legal representation, it is reasonably arguable that the Adjudicator had a positive duty in holding an oral hearing in order to clarify or seek further details from the Applicants;

(d) Before the Adjudicator drew inference from the Applicant’s safe departure from Indonesia (see paragraph 13 of his determination), it is reasonably arguable that he should give an opportunity to the Applicant to explain and if necessary the Adjudicator should undertake further probing and inquiry, see SS v William Lam CACV 95 of 2013, 4 November 2014; and

(e) The same observation can be made regarding the Adjudicator’s comment on the injury suffered by the mother (at paragraph 15 of his determination).         

18.Had the judge had the benefit of that judgment, we believe the judge would not have refused leave.  We would allow the appeal, set aside the order of Anthony Chan J and grant leave to the Applicants to apply for judicial review.  We would also order that the costs here and below shall be in the cause of the substantive judicial review application.  We would also order that the Applicants’ own costs in this appeal shall be taxed according to Legal Aid Regulations.

Written submissions by Mr Philip Dykes, SC and Mr Earl Deng, instructed by Daly & Associates for the applicants