FB v. DIRECTOR OF IMMIGRATION AND ANOTHER

FB v. DIRECTOR OF IMMIGRATION AND ANOTHER

Blanket departmental policies that deny the presence of legal representatives during CAT screening and refuse publicly funded legal assistance to indigent claimants are unlawful because they fail the high standards of fairness required by Prabakar; further, a system where interviewers are distinct from decision-makers without adequate training of decision-makers is procedurally unfair; petition decisions require adequate reasons and, in many cases, an oral hearing and opportunity for representation; these defects require quashing of affected decisions and declaratory relief.

Citation
FB v. DIRECTOR OF IMMIGRATION AND ANOTHER
Parties
Applicant: FB; Applicant: NS; Applicant: M; 1st Applicant: RO; 2nd Applicant: MO; 3rd Applicant (by His Father and Next Friend Ro): YO; 4th Applicant (by His Father and Next Friend Ro): 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
HCAL51/2007
Procedural Posture
Judicial Review (constitutional and Administrative Law) / Judgment of Court of First Instance (determination on System and Individual Challenges)
Outcome
Applicants succeeded in part: declarations granted that key blanket policies and systemic procedures are unlawful; decisions on FB and NS petitions set aside for procedural unfairness; leave to apply reserved for drafting declarations and ancillary orders.
Legal Topics
Screening Procedure, Procedural Fairness, Legal Representation, Article 3 Convention Against Torture, Judicial Review, Petition to Chief Executive, Training of Decision Makers, Conflict of Interest, Reasons for Administrative Decisions
Source Language
EN
Immigration Law Administrative Law Constitutional Law Human Rights Law International Law Refugee Law Screening Procedure Procedural Fairness +7 more

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Parties

FB

Applicant

NS

Applicant

M

Applicant

RO

1st Applicant

MO

2nd Applicant

YO

3rd Applicant (by His Father and Next Friend Ro)

WO

4th Applicant (by His Father and Next Friend Ro)

PVK

Applicant

ND

Applicant

Director of Immigration

1st Respondent

Secretary for Security

2nd Respondent

Procedural Posture

Judicial Review (constitutional and Administrative Law) / Judgment of Court of First Instance (determination on System and Individual Challenges)

Legal Issues

  1. 1 Whether the screening process for CAT claims meets the high standard of procedural fairness required by Prabakar
  2. 2 Whether a blanket policy denying presence of legal representatives during questionnaire/interview is lawful
  3. 3 Whether the Government must provide publicly funded legal assistance to indigent CAT claimants

Ratio Decidendi

Blanket departmental policies that deny the presence of legal representatives during CAT screening and refuse publicly funded legal assistance to indigent claimants are unlawful because they fail the high standards of fairness required by Prabakar; further, a system where interviewers are distinct from decision-makers without adequate training of decision-makers is procedurally unfair; petition decisions require adequate reasons and, in many cases, an oral hearing and opportunity for representation; these defects require quashing of affected decisions and declaratory relief.

Court Disposition

Applicants succeeded in part: declarations granted that key blanket policies and systemic procedures are unlawful; decisions on FB and NS petitions set aside for procedural unfairness; leave to apply reserved for drafting declarations and ancillary orders.

Orders

  • Declaration that policy refusing presence of legal representatives during completion of questionnaire or during interview for Convention claimants is unlawful
  • Declaration that policy refusing to provide publicly funded legal representation to indigent Convention claimants is unlawful