SH v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

SH v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

Because the Adjudicator reached adverse credibility findings and relied on matters that were troubling his mind without affording the applicant an opportunity for oral clarification, the high standard of fairness required in torture/non‑refoulement adjudication was not met; accordingly the TCAB decision was quashed and the matter remitted for reconsideration by another Adjudicator, while the Director's original decision was upheld.

Citation
SH v. THE DIRECTOR OF IMMIGRATION AND ANOTHER
Parties
Applicant: SH; 1st Respondent: The Director of Immigration; 2nd Respondent: Winston Leung qua Member of the Torture Claims Appeal Board / Adjudicator of the Non‑Refoulement Claims Petition Office
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 June 2017
Case Number
HCAL59/2015
Procedural Posture
Judicial Review (constitutional and Administrative Law) / Judgment (court of First Instance)
Outcome
Application for judicial review allowed in part; certiorari granted quashing the decision of the Torture Claims Appeal Board and remitted for reconsideration by another Adjudicator; Director's decision upheld in substance.
Legal Topics
Non‑refoulement, Torture, CIDTP (cruel, Inhuman or Degrading Treatment or Punishment), Persecution, Credibility Findings, Oral Hearing Entitlement, Country of Origin Information (coi), State Protection, Internal Relocation, Procedural Fairness, Judicial Review
Source Language
EN
Immigration Law Administrative Law Constitutional Law Human Rights Law Refugee and Non‑refoulement Law Non‑refoulement Torture CIDTP (cruel, Inhuman or Degrading Treatment or Punishment) +8 more

Case Brief

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Parties

SH

Applicant

The Director of Immigration

1st Respondent

Winston Leung qua Member of the Torture Claims Appeal Board / Adjudicator of the Non‑Refoulement Claims Petition Office

2nd Respondent

Procedural Posture

Judicial Review (constitutional and Administrative Law) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the Torture Claims Appeal Board erred in refusing an oral hearing despite new evidence and credibility issues
  2. 2 Whether the Board failed to make an independent inquiry into Country of Origin Information and whether the Director's COI assessment lacked adequate reasons
  3. 3 Whether the Adjudicator applied inappropriate common‑sense assumptions or conjecture in assessing credibility

Ratio Decidendi

Because the Adjudicator reached adverse credibility findings and relied on matters that were troubling his mind without affording the applicant an opportunity for oral clarification, the high standard of fairness required in torture/non‑refoulement adjudication was not met; accordingly the TCAB decision was quashed and the matter remitted for reconsideration by another Adjudicator, while the Director's original decision was upheld.

Court Disposition

Application for judicial review allowed in part; certiorari granted quashing the decision of the Torture Claims Appeal Board and remitted for reconsideration by another Adjudicator; Director's decision upheld in substance.

Orders

  • Certiorari quashing the decision of the Torture Claims Appeal Board (TCAB)
  • Remit the matter to the TCAB for reconsideration by another Adjudicator