Transforming fairness as a ground of judicial review in Hong Kong

Transcription

1 The Author Oxford University Press and New York University School of Law. All rights reserved. For permissions, please Transforming fairness as a ground of judicial review in Hong Kong Swati Jhaveri* This paper evaluates the recent development of fairness as a ground of judicial review by the courts in Hong Kong. This newly developed ground of fairness is significantly more far-reaching than procedural fairness and other existing uses of fairness in judicial review. Key innovations include: (a) the courts review of systemic problems with decision-making processes; (b) the extension of the courts review of the fairness of such processes beyond the traditional focus on, for example, the right to a hearing; and (c) the introduction of a sliding scale of review with stronger or anxious scrutiny of decision-making processes. The paper evaluates the need for these innovations, noting an absence of a conscious internalization of procedural standards in decision making at the executive level. The paper concludes that the ground of fairness, therefore, is a positive development of administrative law. However, in addition to the usual risk of over-judicialization of administrative process, there is a risk that the recently developed ground is too hard-edged as currently formulated. The paper, therefore, proposes the introduction of a justificatory and balancing component to its usage, similar to that used in the context of proportionality. It also proposes a clarification of the kinds of situations that would trigger the use of this stronger ground of fairness. 1. Introduction It is often difficult to be dogmatic as to the fairness or unfairness of a particular course of action. Justice Huggins in Chan Yat-San & Others v. The Attorney General [1975] HKLR 503 (Chan Yat-San) The above statement by Justice Huggins was not consequential in the context of the Chan Yat-San case itself. However, it serves as an important precursor for recent developments in judicial review in Hong Kong. This paper examines these latest decisions of the Hong Kong courts (including at the final appellate level) involving the development and integration into administrative law of a more far-reaching and open-textured ground of judicial review based on fairness than has been used in traditional procedural fairness cases. * BA, BCL (Oxon), Assistant Professor, Faculty of Law, National University of Singapore. lawssj@ nus.edu.sg. The work described in this paper was partially supported by a grant from the Research Grants Council of the Hong Kong Special Administrative Region, China (Project no. CUHK ). I would like to thank Michael Ramsden and Matthew Cheung for their comments. All errors remain my own. I CON (2013), Vol. 11 No. 2, doi: /icon/mos058

2 Transforming fairness as a ground of judicial review in Hong Kong 359 Traditionally, fairness has had two main focuses as a ground of review: (a) procedurally, to review decisions on the basis of a a failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision, 1 as well as an underpinning of the rule against bias; and (b) substantively, and more recently, as an explanation for review on the basis other grounds. For example, review for mistakes of fact and enforcement of legitimate substantive expectations have both been explained in terms of the fairness of the situation requiring such review. 2 The developments in recent cases, however, take it further than these two uses with a significant expansion of the concept and usage of fairness itself. The more expansive ground of fairness that we start to see developed in recent cases starting with the decision of the Court of Final Appeal (CFA) in Sakthavel Prabakar v. Secretary for Security 3 involved a number of key innovations in the use of fairness. In these cases: (a) the courts globally reviewed decision-making systems and, in particular, systemic problems with such processes (including, e.g., the lack of training provided to decision makers in a particular area of law), all under the heading of fairness ; (b) the courts review of the fairness of such decision-making systems extended beyond the traditional focus on, say, the right to a hearing or the right to legal representation to broader questions of design and the decision-making behavior of an institution (for example, the institutional bias of a department such as the Department of Immigration when it is making decisions on whether to grant asylum with the concern that it will not be able to behave in an unbiased manner as a department due to its wider concern with immigration control); 4 (c) the introduction of a sliding scale of review, with stronger scrutiny and intensity of review of decisionmaking systems having a significant impact on individuals (this is different from the current sliding scale of standards used by the courts, whereby higher standards of fairness are expected in situations where there is a significant impact on the rights, life, or livelihood of the individual concerned). In essence, this new fairness, therefore, involves the courts in globally reviewing a decision-making process and according to such processes a higher degree of scrutiny the greater the impact on an individual. In such a global review, the courts scrutiny is no longer confined to traditional concerns of procedural fairness but extends to any aspect of the process, including the more practical aspects of the decision-making process, for example, the optimal design of questionnaires used to interview potential asylum seekers. Section 2 will discuss these developments in more detail, and Section 1 Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 per Lord Diplock [hereinafter CCSU]. 2 See Ng Siu Tung & Others v. Director of Immigration [2002] HKCU 13 (relying on R v. North and East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850); and E v. Secretary of State for the Home Department [2004] QB 1044 at 1071 per Carnwarth LJ. 3 Sakthavel Prabakar v. Secretary for Security [2005] 1 HKLRD Similar to the allegation of institutional bias made by the applicants in R (on the application of Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389.

3 360 I CON 11 (2013), will then highlight the exact nature and extent of these developments against the backdrop of fairness as it is currently used in judicial review cases. These developments are significant in themselves as evidence of shifts in orthodoxy; however, they have a wider significance as possibly forming the basis for a new and overarching ground of judicial review cast in terms of fairness (as equivalent to illegality and irrationality ). This will be considered further in Sections 4 and 5 below. This paper argues that this newly developed ground of fairness is, in principle, a welcome development to administrative law and judicial review in Hong Kong. This new ground of fairness will help, in particular, highlight faults in decision-making areas that suffer from systemic procedural design problems or where there is the lack of a system to start with for making decisions, especially when such decisions have a significant impact on individuals. This newly developed form of fairness could also assist in enhancing the normative content of procedures in these areas and could help introduce an element of procedural consciousness into the executive environment within which decisions are made. This would ultimately also facilitate decision making that could best achieve legislative and political objectives within the executive s portfolio. However, the paper will also highlight concerns with the overexpansion or improper use of this ground of fairness, including the risk of over-judicializing decision making and also the risk of inappropriate judicial involvement in certain questions of design in decision-making processes (especially where such [re]design would have a significant impact on the allocation of scarce resources). To avoid these difficulties, this paper seeks to clarify the trigger points for this expanded fairness review; namely, the kinds of situations in which the courts would be right in looking at systemic procedural problems and deploying a higher level of scrutiny and fairness in their review. In addition, the paper proposes the introduction of a balancing component to the court s review under this expanded ground of fairness. As will be further highlighted below, currently, the ground of review is a one-way conversation whereby the courts set the standard of fairness and use it to assess the decision-making process and decisions by the executive. It is missing a justificatory component whereby the executive is provided with an opportunity to rationalize (for example, through a proportionalitystyle analysis) its reasons for designing a decision-making process in the way it has designed it in response to the court s assessment of the fairness of the decision-making process. The paper, therefore, proposes the possible introduction of a justificatory component into the use of this recent version of fairness. 2. The new generation of fairness: Prabakar and FB The development of fairness, described above, is apparent in a series of important decisions of the Hong Kong CFA and Hong Kong Court of First Instance (CFI). In these cases different kinds of practical issues with government decision-making processes were reviewed by the courts in terms of their fairness. These developments were

4 Transforming fairness as a ground of judicial review in Hong Kong 361 first apparent in Prabakar 5 and were subsequently consolidated and further expanded in the later decision of the CFI in FB & Others v. Director of Immigration. 6 The backdrop to the cases was the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the United Nations Convention and Protocol Relating to the Status of Refugees (the Refugee Convention). It is Hong Kong s commitments under the treaty, which had yet to be implemented at the domestic level by the Immigration Department, that prompted the Court to consider how these commitments should be implemented and to decide on the standards that should be used to adjudicate the mode of implementation (in this case, the courts used fairness as the relevant standard as will be further discussed below). However, while the context of the cases and the identity of the applicants as asylum seekers as well as the international treaty background of the case is important in understanding the courts motivation to use fairness in the way it did and as strongly as it did, it is clear that the courts rationale for these cases extends well beyond this context, with the clear potential to have a more general application, as will also be further explained below Facts and decision in Prabakar The applicant in Prabakar was a member of the Tamil minority population in Sri Lanka. The applicant arrived in Hong Kong using a forged Canadian passport in order to escape threats to his life. The applicant claimed that, as a Tamil, he was under pressure and had received death threats from members of a Tamil nationalist movement (known as the LTTE ) to join the military wing of their organization. He further claimed that he was also suspected of being a member of the LTTE by the national authorities and security forces and had been arrested and tortured on a number of occasions. He was arrested in Hong Kong and the Secretary for Security made, inter alia, a deportation order against the applicant pursuant to section 20(1)(a) of the Immigration Ordinance (cap. 115) on the ground that he had been guilty of an offense punishable with imprisonment of less than two years. Two key conventions on the rights of refugees and torture claimants provide an important setting for the applicant s case and the CFA s decision in this case: the CAT and the Refugee Convention. 8 While serving his sentence, the applicant applied for refugee status, pursuant to the Refugee Convention, on the grounds that his life was in danger in Sri Lanka. The Refugee Convention defines a refugee as any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality 5 Supra note 3. 6 FB & Others v. Director of Immigration [2009] 2 HKLRD Indeed, this was recognized by Bokhary PJ in his concurring judgment at para. 72, Prabakar, supra note 3: the strength of the case for quashing this deportation order should not mask the need for strong procedural safeguards even in cases where the stakes are far less high than they were in this one. 8 While a party to CAT, Hong Kong is not a party to the Refugee Convention.

5 362 I CON 11 (2013), and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.... In Hong Kong, the Refugee Convention is administered by the Hong Kong office of the United Nations High Commission for Refugees (UNHCR). The applicant was interviewed by the UNHCR but was refused refugee status. In relation to the implementation of CAT, the Secretary for Security had a general policy not to deport individuals in the applicant s position where torture claims were well-founded pursuant to article 3(1) of CAT. This article states that a contracting party (such as Hong Kong) cannot expel a person to another state where there are substantial grounds for believing that they would be in danger of being subjected to torture. Article 1(1) of CAT defines torture to mean: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Article 3 further states that, in determining whether there are such grounds, competent authorities should take into account all relevant considerations including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights. The Secretary for Security argued that the nondeportation policy of the Hong Kong government could be found in a 1999 report filed under CAT, the relevant section of which reads: Should potential removees or deportees claim that they [w]ould be subjected to torture in the country to which they are to be returned, the claim would be carefully assessed, by both the Director of Immigration and the Secretary for Security or, where the subject has appealed to the Chief Executive, by the Chief Executive in Council. Where such a claim was considered to be well-founded, the subject s return would not be ordered. In considering such a claim, the Government would take into account all relevant considerations, including the human rights situation in the state concerned, as required by Article 3.2 of [CAT]. Generally, the Secretary for Security would rely on the decision made by the UNHCR under the Refugee Convention on a refugee s status to make a decision under article 3(1) of CAT. In light of the initial decision to refuse refugee status to the applicant by the UNHCR, the Director of Immigration recommended that the Secretary for Security make an order to deport the applicant from Hong Kong to Sri Lanka with no option of return. Subsequently, after several rounds of further representations and evidence by the applicant, the UNHCR recognized the applicant s refugee status on grounds that the applicant had demonstrated the existence of a real risk that he could be subject to torture or inhuman or degrading treatment if he was returned to Sri Lanka. The applicant accordingly was given permission to stay temporarily in Hong Kong pending attempts by the government to identify a country that would accept him as a refugee for the purposes of permanent residence. However, despite the applicant s requests,

6 Transforming fairness as a ground of judicial review in Hong Kong 363 the Secretary for Security still refused to rescind the deportation order on the grounds that the applicant s criminal conviction still stood and expressed the intention that, once a suitable country had been identified, the applicant would be deported to that country and be prohibited from entering Hong Kong again. The applicant sought to challenge the Secretary for Security s decision not to rescind the deportation order primarily on grounds of fairness. The applicant argued that the Secretary had not made his own assessment of the applicant s situation under article 3(1) of CAT and, instead, had simply relied on the UNHCR s decision. The applicant argued that the UNHCR was not amenable to judicial review or appeal and cannot be compelled, therefore, to give the reasons for their decision. In such circumstances, the applicant felt that an independent assessment of the situation was obligatory by the immigration and security authorities of Hong Kong. In the absence of such an independent assessment under CAT, the deportation order should not stand. An important point for the CFA, which informed the remainder of its decision, was that it considered the applicant had a right not to be subjected to torture or cruel, inhuman, or degrading treatment and that this was a fundamental human right. According to the CFA, CAT was concluded for the effective protection of this fundamental human right. Equally important was the fact that a determination by the Secretary for Security in such a context would have a significant impact on individuals and their lives. The CFA further recognized the Secretary for Security s policy of not deporting a person to a country where the person claimed he would be subjected to torture and that the policy was an implementation of the safeguards in article 3(1) of CAT. 9 The CFA went on to hold that any decision made under the policy must be made fairly. 10 In reaching this conclusion, the CFA claimed that this was a reference to procedural fairness: The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the [non-deportation] policy the potential deportee s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter. 11 Following from this, the question for the CFA was what the standards of fairness were and, in particular, whether the Hong Kong government can meet them by relying on the UNHCR s decision on refugee status. On this point, the CFA took the view that while there may be overlap between the Refugee Convention and CAT, 9 As a preliminary matter, the CFA held (for reasons not apparent from the reports) that it was not necessary to consider whether the Secretary for Security was obliged to follow the nondeportation policy as a matter of law and it would be assumed that they were. A similar approach was taken by the court in FB, supra note 6, para The source and nature of the obligation of non-refoulement on the part of the Hong Kong SAR government has since been the subject of separate legal proceedings: C & Ors v. Director of Immigration & Anor, CACV of 2008, July 21, Prabakar, supra note 3, para Id. para 43.

7 364 I CON 11 (2013), there are circumstances where an individual is protected by one and not another. For example, the Refugee Convention does not apply where there are serious reasons for considering an applicant is guilty of various crimes, including war crimes or crimes against humanity pursuant to article 1(f) of the Refugee Convention. Against this backdrop, the Secretary for Security was not entitled to rely on the UNHCR s decision in discharging his own duty to act fairly under his own non-deportation policy. In determining the standards of fairness, the CFA recognized that the Secretary s decision would have a significant impact on the applicant and, in particular, on his life and his fundamental human right not to be subjected to torture. In such a context, high standards of fairness must be demanded in the making of such a determination. 12 These high standards of fairness would only be met if: (1) the applicant who had the burden of establishing his torture claim was given every reasonable opportunity to establish that claim; (2) the claim was properly assessed by the Secretary (which required taking into account the conditions in the country concerned; whether the potential deportee had been tortured in the past and, if so, how recently; whether there was medical or other independent evidence to support the claim of past torture; whether the potential deportee had engaged in political or other activity which would make him vulnerable to the risk of being subjected to torture on return; whether the claim was credible). The Court further held that it was also important for the Secretary for Security to bear in mind the difficulties of proof that applicants face in such circumstances, where they may not have been able to leave their country of origin with adequate documentary proof. In addition, it may not be appropriate for the Secretary to require of applicants strict proof in relation to their claim; it may be appropriate for the Secretary to draw attention to matters that obviously require clarification so that applicants could address such matters; and, (3) where the claim is rejected, the Secretary must provide reasons that are sufficient to enable the applicant to consider the possibilities of administrative and judicial review. The Court held that in assessing whether such high standards of fairness were met it should not interfere with the primary decision maker s decision. However, at the same time and given the importance of the situation, the court will subject the primary decision maker s decision to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met. 13 In carrying out this anxious scrutiny, the CFA held that the above high standards had not been met by the Secretary for Security in following the UNHCR s decision without any independent consideration or investigation. The CFA went further in its analysis to elaborate on the weight that should be attached to the UNHCR s decision. Where the UNHCR makes a favorable decision the Secretary for Security should give that decision great weight. Where the UNHCR rejects an applicant s claim for refugee status the Secretary should take this into consideration and give it the appropriate weight but still 12 Id. para Id. para. 45.

8 Transforming fairness as a ground of judicial review in Hong Kong 365 conduct his own independent assessment of the applicant s case. In all circumstances, the Secretary should attempt to obtain the reasons for the UNHCR s decision before making any decision and before deciding on the weight to be ascribed to the UNHCR s decision. The foregoing highlights, in particular, the ways in which the CFA has broadened the scope of review previously undertaken under the heading of fairness. While points (1) and (3), above, could be considered analogically similar to the procedural review typically carried out by courts, point (2) reveals a new aspect of review under the heading of fairness. It is point (2) that has opened up review on the basis of fairness the most. For example, it involves the Court s prescribing considerations that the executive must take into account, and it further involves the Court in deciding on the weight that particular considerations may have (as was done, in this case, through the Court s discussion on the weight to be ascribed to the UNHCR s decision). On this latter point, the Court has gone further than it has in previous cases. On a number of occasions, the courts have stated that although they will identify the considerations they consider relevant they will not ascribe weight to the consideration, this being entirely a matter for the executive: It is for the courts... to decide what is a relevant consideration.... But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense However, in Prabakar, under the heading of fairness, the CFA identified and prescribed the actual weight to be given to a key consideration. A further innovation is the introduction of a sliding scale of review in the procedural fairness context. Previously, this sliding scale was only apparent in the context of irrationality-based review. As will be discussed further below in Section 3.2, while the courts would previously state that the extent of procedural protection was a product of the context of the case, they would not vary the extent of their scrutiny, as such just the extent of the protection. 15 The CFA s decision is also significant in terms of the implications it has for staffing and training at the government level. Whereas previously the Secretary for Security relied on the expertise of the UNHCR, that office will now have to develop its own expertise and systems for assessing CAT claims. The impact and scope of the CFA s decision is apparent in the decision of the Court of First Instance in FB Facts and decision in FB Following Prabakar, the Secretary for Security established a multistage screening process to assess CAT claims. This process was administered by the Special Assistance Section of the Department of Immigration. Under this procedure, the Director of Immigration first had to identify whether a CAT claim had been made, and this 14 Per Lord Keith in Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759, at 764, cited with approval in Chu Hoi Dick & Anor v. Secretary for Home Affairs, HCAL 87/2007, Aug. 10, 2007 (Court of First Instance) at para See Section [3.2] and discussion on McInnes v. Onslow-Fane [1978] 3 All ER 211.

9 366 I CON 11 (2013), depended largely on how the applicants framed their claim. If the process was triggered, an applicant was sent a notice explaining the process. The applicant then had to complete a questionnaire (which would be translated if necessary). The questionnaire would then form the basis for interviews with an Immigration Officer. On the basis of the interviews and questionnaire and any other available information, the Immigration Officer would make a recommendation to a Senior Immigration Officer. The Senior Immigration Officers (who had no specific CAT training) would review the claim and either endorse the recommendation or make a new one. An Assistant Director of Immigration would then make a provisional decision. If this was not favorable, the applicant would be able to make further representations after which the Assistant Director of Immigration would make a final decision. During this whole process, lawyers were not permitted or provided. Applicants could appeal to the Chief Executive from the final decision of the Assistant Director by petition but, again, at this stage there was no legal representation. The Secretary for Security (under authority delegated by the Chief Executive) and on advice from his officers at the Security Bureau would decide the outcome of the petition without an oral hearing and was not obliged to disclose legal advice it received on the petition. This procedure was the subject of judicial review in FB. The applicants challenges focused on more traditional complaints, such as the blanket restriction on legal representation (either the applicant s own representatives or the provision of representatives). However, the applicants challenges went further. They sought to challenge the design of the screening process, as a whole, on the grounds of fairness. The applicants acknowledged they were mounting a systembased challenge based on fundamental flaws in the screening process. For example, the applicants had an issue with the fact that the person conducting the interview and assessing, inter alia, the credibility of the applicant s claim was not the same person making the final decision. In addition, the applicants challenged the level of training and guidance provided to the officers involved on the nature of CAT screening and determinations. Finally, the applicants argued that as the interviewing officers were members of the Department of Immigration and duty-bound to enforce the immigration policies of the jurisdiction they were unable to be impartial and independent. 16 The applicants also challenged the way a decision was made at the outset on whether on not the applicant had couched the claim using the right words in order to trigger the application of the screening process. The respondents sought to argue that such a system-based challenge is not permissible. The Court, however, held that it is... just, convenient, and in the interests of good administration that if a policy is unfair or unlawful, and that if a decision-maker will act upon that policy unless corrected, those policies should be quashed before any further current decisions may be made pursuant to such policies. The early correction of a flawed process is all the more important when there are so many 16 This is similar to the question raised in Alconbury, supra note 4, where the Court had to consider a question of institutional bias on the part of the Secretary of State in his dual role as adjudicator in a planning appeal and his main role in designing planning policy.

10 Transforming fairness as a ground of judicial review in Hong Kong 367 claims awaiting consideration by the process under challenge.... [T]here is no requirement in administrative law that an applicant must be obliged to await an arguably unfair determination after having submitted to an arguably unfair procedure, simply to obtain a decision capable of challenge, or to exhaust what arguably unlawful procedures there may be, in search of what may be an alternative remedy In reaching its conclusion that such systemic-review cases were permissible, the court relied on jurisprudence from the UK and, in particular, on R(Q) v. Secretary of State for the Home Department 18 and R (Refugee Legal Centre) v. Secretary of State for the Home Department. 19 These cases involved applicants challenging the system of questioning adopted during the investigation of claims for asylum and the fast-track system of asylum adjudication. By accepting jurisdiction to look into the fairness of decision-making systems, the Court accordingly further opened up the use of the version of fairness review developed by the CFA in Prabakar. That case operated on a basis of high-level principles relating to fairness; however, FB went further in its application of such high-level principles to practical problems and, more importantly, to problems with the design of a process versus just discrete decisions on procedure. This expanded use of Prabakar becomes evident in FB through an examination of the Court s assessment of the applicants complaints proper. First, the Court held that the Director s initial assessment as to whether or not a claim had been made under CAT was based on a narrow and technical assessment of the language used by applicants. The Director should, instead, proactively look for language that may be interpreted as engaging CAT, irrespective of whether the applicant specifically uses words like torture. To do otherwise, the Court said, would be contrary to the high standards of fairness that the CFA held were required in such situations as it would be tantamount to sitting back and putting the person concerned to strict proof of the claim. 20 On the blanket ban on legal representation 21 in connection with the questionnaire and during the interview process and the absence of any provision for such representation for applicants who could not afford their own, the Court held that this did not meet the high standards of fairness required. The respondents argued, inter alia, that representation or funding for such representation was not mandated by Prabakar nor required, given the essentially factual nature of the CAT assessment. The Court objected, however, to a blanket ban. First, it did not allow for a case-by-case assessment of whether circumstances existed making legal representation appropriate in any particular situation. Second, the Court rejected the idea that legal representation was not mandated by Prabakar. On this, the Court held that the CFA was dealing with 17 FB, supra note 6, paras 60, 63, R (Q) v. Secretary of State for the Home Department [2004] QB R (Refugee Legal Centre) v. Secretary of State for the Home Department [2005] 1 WLR FB, supra note 6, para The respondent had unsuccessfully tried to argue that it was not a blanket ban on legal representation in light of, inter alia, two narrow exceptions where lawyers would be permitted during the questionnaire and interview process: these exceptions were in the case of minors and fugitive offenders. The Court held that the exceptions were too narrow and discretionary in nature to undermine the conclusion that the policy on legal representation was a blanket policy: FB, supra note 6, paras

11 368 I CON 11 (2013), a question of general principle and did not intend to set out particular requirements. However, this did not mean that specific procedural safeguards were not required simply because they had not been spelled out in Prabakar. The Court went on to hold that circumstances that are relevant to deciding whether fairness requires legal representation included applicants ability to understand the nature of the proceedings; their ability to understand and communicate effectively in the language of the decision maker; and the legal and factual complexities of the case and the importance of the decision to the applicant s liberty or welfare, even though the proceedings were not strictly criminal in nature. According to these criteria, the court held that legal representation was clearly required. The Court drew support from jurisprudence from Australia 22 and England. 23 The Court also drew support from government policies elsewhere, including the Interviewing Protocol Governing the Conduct of Substantive Interviews and the Role of Interviewing Officers, Representatives and their Interpreters issued by the Border and Immigration Agency of the Home Office in the United Kingdom. This policy statement has a more tailored approach to legal representation. It recognizes the government s view that legal representation is not normally required but further recognizes that, where representatives are present during interviews, their role is narrowly defined to ensure the applicant understands the interview process and has the opportunity to present all relevant information to the interviewer. It also allows the interviewer the power to exclude the representatives if they are disrupting the process. This conclusion regarding legal representation is in line with a general judicial disagreement regarding blanket bans on legal representation expressed elsewhere in the Hong Kong context. 24 The Court further felt that a logical extension of their conclusion was an obligation on the government to provide representation or funding for such representation where the applicant could not afford it. The Court observed that invariably there may be situations where applicants may not be able to afford representation and, accordingly, the lack of any provision of funding would be tantamount to denying representation. 25 This aspect of the Court s decision has clear funding implications for the government. Another system-based challenge is related to the fact that the interviewer was a different officer from the one making the final decision. The applicant claimed that this was unfair, as the credibility of the claimant (assessed during the interview) was of importance to the final decision. Relying on cases from England, 26 the Court held that, where credibility is an issue, the fairness of the situation requires that the person involved with the questionnaire and interview also makes the final decision. This 22 WABZ v. Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR R (Dirshe) v. Secretary for State for the Home Department [2003] 1 WLR 2684 at para Stock Exchange of Hong Kong Ltd v. New World Development Co Ltd & Ors [2006] 2 HKLRD 518; and Lam Siu Po v. Commissioner of Police [2009] 4 HKLRD The Court relied on obiter from Dirshe, supra note 23, and New Brunswick (Minister of Health and Community Services) v. G(J) [1999] 3 SCR 46 in Canada. 26 R v. Secretary for State for the Home Department ex parte Akdogan (No. 2) [1995] Imm AR 176 at 182; and R (Q), supra note 18.

12 Transforming fairness as a ground of judicial review in Hong Kong 369 creates challenges as either it requires that the Assistant Director of Immigration (as the final decision maker) conduct interviews, which would be an inefficient use of his time, or it requires the authorization of subordinate interviewing officers to make final decisions, which may not be permissible under statute prescribing who are power holders in specific situations (alternatively, it may not be in line with their level of training and expertise). On the training argument, the Court found (on the evidence) that to the extent that there was evidence of a systemic lack of proper training 27 this would undermine high standards of fairness: It is obvious, and beyond argument, that if the training given to decision makers in a system of assessment such as that required under [CAT] is inadequate, then the system established will not meet the high standards of fairness required by [Prabakar]. 28 Ultimately, on the basis of the foregoing, the Court granted declaratory relief to the applicant; the terms of the declaratory relief were directionary in nature, requiring positive action and implementation on the part of the government. The government has since been under pressure to introduce reformed procedures for dealing with CAT claims Summary of developments The discussion in this section highlights the innovations from these cases that do not fit precisely into the existing framework of principles that are used to look at issues of either fairness or procedural impropriety (which will be discussed further in Section 3 infra). The difference between previous uses of fairness and the concept as used here is particularly clear when one considers the remedial implications of the developments. Previously, the highest level of protection the courts recognized in the context of judicial review on grounds of procedural impropriety was an oral hearing or the right to legal representation. However, under Prabakar and FB, fairness requires global systemic changes to the way in which decisions are made by an institution. The CFA in Prabakar also imposed a positive obligation (versus just a recommendation) on government to develop an appropriate decision-making process for handling applications under CAT. Positive obligations were also imposed on the government in FB to provide legal representation and legal aid to asylum seekers. The Court s introduction of a sliding scale of scrutiny is also novel. This sliding scale is only apparent, thus far, in the context of irrationality. 30 Before Prabakar and FB, the 27 FB, supra note 6, para Id. para Id. para It has just done this, in fact, on Apr. 12, 2011, through proposed amendments to the Immigration Ordinance (cp. 115). These amendments propose setting up a statutory scheme for dealing with torture claims, which includes the establishment of a Torture Claims Appeals Board. These amendments are still progressing through the legislative process. 30 For example, the courts have heightened their review to the level of anxious scrutiny in cases like R v. Ministry of Defence, ex parte Smith [1996] QB 517 and R v. Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696. Similarly they have reduced their scrutiny in cases dealing with the allocation of scarce resources (R v. Chief Constable of Sussex, ex parte International Trader s Ferry Ltd [1999] 2 AC 418).

13 370 I CON 11 (2013), sliding scale of review was not used in the context of other grounds of judicial review, such as illegality or procedural fairness. The next sections evaluate these developments: Section 3 looks at existing uses of fairness and contrasts them with the developments in Prabakar and FB and Sections 4 and 5 propose how to take these developments forward. 3. Existing uses of fairness, sliding scales of review, and systemic review In order to understand fully the nature and extent of the developments initiated by the Prabakar line of cases it is important to set out the context in which they will operate in administrative law. Accordingly, this section sets out briefly the previous usages of procedural fairness, and fairness more generally, in judicial review in Hong Kong. This section looks at these usages together with existing developments in case law, which may imply that the Prabakar line of cases is not novel (for example, because it also refers to general ideas of fairness and sliding scales of review and scrutiny). However, as will be shown below, these developments are both categorically different and not as far-reaching as those initiated by Prabakar Procedural fairness: Natural justice and procedural impropriety under Council of Civil Service Unions (CCSU) An established use of fairness is in the context of procedural impropriety as described by Lord Diplock in CCSU. 31 Upon this ground, the courts generally approach the issue of procedural fairness in two stages. First, the Court considers whether procedural protection is applicable in the first instance in any particular context. Second, if procedural safeguards are applicable, then the Court considers the requirements of procedural fairness in a particular context; this may depend on explicit statutory provisions on the issue, the existence of a procedural legitimate expectation regarding the process to be following in reaching a decision, 32 or common law principles. As for the latter, the Court will look at what is required by the context of the case. As Lord Bridge said in Lloyd v. McMahon: 33 My Lords the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. On the question of the content of procedural protection, the courts have not been overly prescriptive and have largely looked at the question on the basis of a range of considerations, such as the impact on the individual, the impact on the administration, 31 Supra note Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch Lloyd v. McMahon [1987] AC 625 at 702.

14 Transforming fairness as a ground of judicial review in Hong Kong 371 and the benefit of procedural protection in a particular case. This kind of balancing exercise will be further discussed below. A final observation on this use of procedural fairness is that the Court s focus generally has been on what can loosely be referred to as judicial procedural norms, such as the right to a hearing, legal representation, the need for reasons, and the requirement that the case be heard by independent, impartial and unbiased decision-makers. The courts typically do not review practical or organizational components of decision-making processes Duty to act fairly and standards of care within such duties In some procedural situations, the courts speak in broader terms than those discussed in the previous section; they offer a more general idea of fairness as guiding any decision-making process. An example is Lord Mustill s observations in R v. Secretary of State for the Home Department, ex parte Doody: 34 What does fairness require in the present case?... The standards of fairness are not immutable. They may change with the passage of time, both in the general, and in their application to decisions of a particular type.... The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependant on the context of the decision, and this is to be taken into account in all its aspects. Accordingly, the courts look at all the circumstances of the case to determine how the demands of fairness should be met. 35 However, the courts still look at fairness, here, in terms of traditional ideas such as a hearing, the right to make representations, and the like. They have not yet (under the heading of general demands of fairness ) looked at broader questions of the design of a decision-making process as is apparent in the Prabakar line of cases. In addition, the foregoing implies that the range of procedural protection will vary, depending on the context, with greater protections in some contexts rather than others. However, this still differs from the sliding scale introduced in Prabakar. The sliding scale in that case was not just related to the range of protection but was also tied to the extent of scrutiny the court would exercise in reviewing the decision-making process. This brings the Prabakar development more in line with developments in the context of irrationality as a ground of review and the introduction of ideas of anxious scrutiny in that irrationality context R v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at See also McInnes v. Onslow-Fane [1978] 3 All ER 211, where the Court distinguished between application, legitimate expectations, and forfeiture cases to determine the degree of procedural protection required by the situation; the implication is that the strong impact on the individual in forfeiture cases required high level procedural protection (in the form of a right to an unbiased tribunal, right to notice of the charges, and the right to be heard) while the low impact on the individual in application cases required lower levels of procedural protection (which required just the imposition of a duty to reach an honest and non-capricious decision without bias). 36 See, e.g., the courts heightened anxious scrutiny in cases like R v. Ministry of Defence, ex parte Smith [1996] QB 517 and R v. Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, involving human rights.

15 372 I CON 11 (2013), Fairness as an explanation of grounds of review: Substantive legitimate expectations Courts have also used fairness as an explanation of other grounds of review. This is apparent, for example, in relation to judicial review for breach of substantive legitimate expectations: The doctrine [of substantive legitimate expectation] recognizes that, in the absence of any overriding reason of law or policy excluding its operation, situations may arise in which persons may have a legitimate expectation of a substantive outcome or benefit, in which event failing to honour the expectation may, in particular circumstances, result in such unfairness to individuals as to amount to an abuse of power justifying intervention by the court. 37 The courts have also used fairness as the explanatory basis for reviewing mistakes of fact: a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. 38 Courts also use fairness to rationalize judicial review of decisions based on wrongful or mistaken assessments of evidence. The decision of the CFI in Michael John Treloar Rowse v. The Secretary for the Civil Service & Ors 39 is an example. However, in all of the above contexts, fairness has operated as a conclusion or explanatory norm of the main ground for judicial review (for example, illegality or substantive legitimate expectations) rather than as the primary norm per se by which the relevant administrative decision was judged, as is the case in Prabakar Systemic Review: Adjudicative and appeal processes As mentioned in Section 1 supra, in cases like Prabakar, the courts have extended their review of procedural fairness to the decision-making design and system as a whole as opposed to discrete decisions. At present, there is one other situation in which the Courts will undertake a more holistic review of a decision-making process this is in relation to the appeals and review process available following a decision. The question the courts consider in such cases is whether the appeals and review process, as a whole, is consistent with one s right to a fair trial. In cases like Runa Begum v. Tower Hamlets London Borough Council 40 and Alconbury, 41 the Court will consider the adequacy of the composite decision-making, review, and appeals process in order to determine whether, globally, they provide the applicant with a fair trial before an independent and impartial tribunal. This is within the 37 Ng Siu Tung & Others v. Director of Immigration [2002] HKCU 13 at para 92 (relying on R v. North and East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850). 38 E v. Secretary, supra note 2, at 1071 per Carnwarth LJ. 39 Michael John Treloar Rowse v. The Secretary for the Civil Service & Ors, HCAL 41/2007, unreported 4 July Runa Begum v. Tower Hamlets London Borough Council and Alconbury [2003] 2 AC Supra note 4.