RO AND OTHERS v. DIRECTOR OF IMMIGRATION AND ANOTHER

RO AND OTHERS v. DIRECTOR OF IMMIGRATION AND ANOTHER

Blanket policies forbidding presence of lawyers at CAT questionnaire/interview and refusing public funding for indigent claimants are unlawful because they fail the high standard of procedural fairness required by Prabakar; the screening system is also unlawful insofar as the decision-maker is different from the interviewer and the decision-makers on petitions lack adequate training; petition determinations without oral hearing and without adequate reasons are procedurally unfair; claim of systemic bias failed on evidence.

Citation
RO AND OTHERS 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
HCAL107/2007
Procedural Posture
Judicial Review Constitutional and Administrative Law (article 3 CAT Screening) / Judgment
Outcome
Applicants granted relief in part; systemic challenges succeeded on multiple grounds; bias/conflict claim dismissed; decisions on petitions of FB and NS set aside for procedural unfairness
Legal Topics
Convention Against Torture (article 3), Procedural Fairness, Judicial Review, Legal Representation and Public Funding, Screening and Interview Procedures, Reasons for Decision, Petitions to Chief Executive, Training of Decision Makers, Conflict of Interest/bias
Source Language
EN
Administrative Law Constitutional Law Immigration Law Human Rights Law International Law Convention Against Torture (article 3) Procedural Fairness Judicial Review +6 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 and Administrative Law (article 3 CAT Screening) / Judgment

Legal Issues

  1. 1 Whether the Department's CAT screening procedure meets the high standard of fairness required by Prabakar
  2. 2 Whether a blanket policy denying presence of lawyers at questionnaire/interview is lawful
  3. 3 Whether the Government must provide publicly funded legal assistance to indigent CAT claimants

Ratio Decidendi

Blanket policies forbidding presence of lawyers at CAT questionnaire/interview and refusing public funding for indigent claimants are unlawful because they fail the high standard of procedural fairness required by Prabakar; the screening system is also unlawful insofar as the decision-maker is different from the interviewer and the decision-makers on petitions lack adequate training; petition determinations without oral hearing and without adequate reasons are procedurally unfair; claim of systemic bias failed on evidence.

Court Disposition

Applicants granted relief in part; systemic challenges succeeded on multiple grounds; bias/conflict claim dismissed; decisions on petitions of FB and NS set aside for procedural unfairness

Orders

  • Declaration that policy refusing presence of legal representatives during completion of CAT questionnaire or during CAT interviews is unlawful and breaches required high standards of fairness
  • Declaration that policy refusing to provide publicly funded legal representation to indigent CAT claimants is unlawful and breaches required high standards of fairness