New review ordered for torture claimant for lack of oral hearing

PUBLISHED : Friday, 27 June, 2014, 2:39am
UPDATED : Wednesday, 20 June, 2018, 4:19pm

A Sri Lankan torture claimant has been given another chance to have his application reviewed after Court of Appeal judges found an adjudicator was unfair in not giving him an oral hearing before dismissing his claim.

Chief Judge Andrew Cheung Kui-nung, Mr Justice Johnson Lam Man-hon and Mr Justice Jeremy Poon Shiu-chor set aside adjudicator Betty Kwan Ka-ching's decision and ordered that the application be dealt with afresh by another adjudicator.

Welcoming the judgment, human-rights lawyer Mark Daly said it would put a halt to the trend where a large number of cases were dismissed by adjudicators without an oral hearing.

In the ruling, Cheung said torture claims required high standards of fairness from the Director of Immigration and the adjudicator as they adopted an active role in screening such claims.

"In the context of a Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment claim, what is involved is the fundamental human right of the claimant to be free from torture," he wrote.

"Life and limb are potentially at risk, thus the high standards of fairness required in the first place."

If any point, factual or legal, troubled the adjudicator, there was a strong need to open an oral hearing or ask for further written representation, Cheung wrote.

The judges found the adjudicator erred in not holding an oral hearing or otherwise not giving the claimant or his legal representative an opportunity to make further submissions.

The Sri Lankan said he had been detained and tortured often in his home country before he came to Hong Kong in 2003 and made the torture claim to the Immigration Department.

When this was refused he petitioned the Chief Executive, prompting the adjudication by Kwan. When he also lost a judicial review application to the High Court, he took the case to appeal.

"The judgment is important in improving the fairness of the screening procedure," Daly said.

But the important issue was the adjudicators' mentality, he added. "They should be looking at this more seriously."