ND v. DIRECTOR OF IMMIGRATION AND ANOTHER

ND v. DIRECTOR OF IMMIGRATION AND ANOTHER

Policies that impose a blanket denial of legal representation at CAT screening and a blanket refusal to provide publicly funded legal assistance to indigent claimants, combined with a system where decision‑makers are separate from interviewers and petition processes lack oral hearings and adequate reasons, fail the high standards of procedural fairness required for Article 3 Convention claims and are unlawful; where petitions were refused without adequate reasons or oral hearing (FB, NS) those decisions must be set aside.

Citation
ND v. DIRECTOR OF IMMIGRATION AND ANOTHER
Parties
Applicant: FB; Applicant: NS; Applicant: M; Applicant: RO; Applicant: MO; Applicant: YO; Applicant: WO; Applicant: PVK; Applicant: ND; 1st Respondent: Director of Immigration; 2nd Respondent: Secretary for Security
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 December 2008
Case Number
HCAL126/2007
Procedural Posture
Judicial Review (constitutional & Administrative Law) / Hearing Concluded; Judgment Delivered (5 December 2008)
Outcome
Judicial review allowed in part; systemic policies declared unlawful; petitions of FB and NS set aside for procedural unfairness (no oral hearing and no adequate reasons); remedial declarations ordered and costs awarded to Applicants
Legal Topics
Convention Against Torture, Procedural Fairness, Legal Representation, Screening Procedure, Right to Reasons, Judicial Review
Source Language
EN
Immigration Law Administrative Law Constitutional Law Human Rights Refugee Law Convention Against Torture Procedural Fairness Legal Representation +3 more

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Parties

FB

Applicant

NS

Applicant

M

Applicant

RO

Applicant

MO

Applicant

YO

Applicant

WO

Applicant

PVK

Applicant

ND

Applicant

Director of Immigration

1st Respondent

Secretary for Security

2nd Respondent

Procedural Posture

Judicial Review (constitutional & Administrative Law) / Hearing Concluded; Judgment Delivered (5 December 2008)

Legal Issues

  1. 1 Blanket denial of counsel during CAT screening
  2. 2 Denial of publicly funded legal assistance to indigent claimants
  3. 3 Decision-maker different from interviewing officer (credibility assessment)

Ratio Decidendi

Policies that impose a blanket denial of legal representation at CAT screening and a blanket refusal to provide publicly funded legal assistance to indigent claimants, combined with a system where decision‑makers are separate from interviewers and petition processes lack oral hearings and adequate reasons, fail the high standards of procedural fairness required for Article 3 Convention claims and are unlawful; where petitions were refused without adequate reasons or oral hearing (FB, NS) those decisions must be set aside.

Court Disposition

Judicial review allowed in part; systemic policies declared unlawful; petitions of FB and NS set aside for procedural unfairness (no oral hearing and no adequate reasons); remedial declarations ordered and costs awarded to Applicants

Orders

  • Declaration that the Respondents policy of not permitting a Convention claimant to have a legal representative present during completion of the CAT questionnaire or at interview is unlawful and breaches the duty to assess CAT claims in accordance with high standards of fairness
  • Declaration that the Respondents policy of not providing, at public expense, legal representation to Convention claimants who cannot afford counsel is unlawful and breaches the duty to assess CAT claims in accordance with high standards of fairness