Secretary for Security v Prabakar [China, Hong Kong Special Administrative Region, Court of Final Appeal]
| Jurisdiction | Hong Kong |
| Judge | Lord Millett,Chan,Ribeiro,Li CJ; Bokhary |
| Court | Court of Final Appeal (Hong Kong) |
| Date | 08 June 2004 |
China, Hong Kong Special Administrative Region, Court of Final Appeal
(Li CJ; Bokhary, Chan and Ribeiro, Permanent Judges; Lord Millett, Non-Permanent Judge)
Aliens Expulsion Non-refoulement Immigration Ordinance Cap. 115 1972 Domestic policy not to deport a person to a country where his claim of risk of torture in that country is well founded
Human rights Freedom from torture Intersection of Refugees Convention, 1951 and Convention against Torture, 1984 Whether determination of United Nations High Commissioner for Refugees as to refugee status relieving Secretary for Security of duty to consider torture claim independently Standard of fairness to be observed by Secretary of State in determining torture claim
Relationship of international law and municipal law Treaties Immigration Ordinance Cap. 115 1972 Domestic policy on non-refoulement Universal Declaration of Human Rights, 1948 Convention against Torture, 1984 Refugees Convention, 1951 The law of the Hong Kong Special Administrative Region of the People's Republic of China
Summary2Thefacts: Mr Sakthevel Prabakar (the respondent) was a Sri Lankan citizen of the Tamil minority. In 1995, the Liberation Tigers of Tamil Eelam (Tamil Tigers) forcibly recruited him and pressured him to fight with them. He refused to fight, and was threatened with death. He fled to Colombo in September 1996.
From October 1996 to December 1998, the respondent was detained and tortured by the Sri Lankan security forces on several occasions on suspicion of being a member of the Tamil Tigers. He procured a forged Canadian passport, which he intended to use to enter Canada and claim asylum, and fled Sri Lanka in January 1999. While transiting Hong Kong, the respondent was arrested and charged with possession of a forged passport, an offence which, under Hong Kong law, carried a maximum sentence of two years' imprisonment. He pleaded guilty and was sentenced to six months' imprisonment. Under the terms of the Immigration Ordinance, the Chief Executive had the power to make a deportation order against an immigrant if that immigrant had been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years. That power had been delegated to the Secretary for Security (the appellant).
In exercising that power of deportation, the appellant had adopted a policy not to deport a person to a country where that person's claim that he would be subjected to torture was considered well founded. This policy had featured in a report submitted by the People's Republic of China as a State Party to the Committee against Torture in connection with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
On 2 March 1999, on behalf of the appellant, the Director of Immigration (the Director) served the respondent in prison with a notice that his deportation to Sri Lanka was being considered, and invited him to make representations. The respondent replied on 5 and 19 March 1999, outlining a detailed history of torture in Sri Lanka; he sought the Director's help to copy and submit documents he held which verified his claim, and stated his enduring fear of further torture upon being returned to Sri Lanka. The Director did not request or copy the documents.
In March 1999, the respondent applied to the United Nations High Commissioner for Refugees (UNHCR) for recognition as a refugee under the Convention relating to the Status of Refugees, 1951 (the Refugees Convention). UNHCR interviewed the respondent and advised him on 30 March 1999 that he was not recognized as a refugee and that UNHCR had determined that he could safely return to Colombo, but not to the north of Sri Lanka. UNHCR wrote to inform the Director that the respondent was not recognized as a refugee but the letter did not mention that UNHCR had said that he would be safe in Colombo but not the north. Consequently, the Director believed that the grounds on which UNHCR had rejected refugee status were unexplained.
On 29 April 1999, upon the Director's recommendation given solely on the basis of UNHCR's determination that the respondent was not recognized as a refugee, the appellant issued an order for the respondent's deportation to Sri Lanka. Neither the Director nor the appellant had considered whether the respondent's claim that he would be subjected to torture upon return to Sri Lanka was well founded.
In July 1999, the respondent's solicitors prepared a further submission for UNHCR and requested the appellant's reasons for determining that the respondent's torture claim was not well founded. The appellant replied that the decision was reached taking into account all compassionate and mitigating circumstances in favour of the respondent, his representations and his application for refugee status to UNHCR.
The respondent lodged a submission appealing UNHCR's refusal of refugee status with the body in August 1999, supported by photographs of scars; a medical report attesting that his injuries were a likely consequence of torture; a certificate from the Red Cross affirming he had been visited in detention; a letter from an attorney-at-law affirming that he had been arrested; and a report from Amnesty International outlining details of torture in Sri Lanka. UNHCR recognized the respondent's refugee status in December 1999.
In September 2000, the respondent applied for judicial review of the appellant's April 1999 deportation order and a further decision in June 2000, which refused his request for the deportation order to be rescinded. At first instance (20 September 2001), the respondent's application was dismissed. On appeal (27 November 2002), the Court of Appeal allowed the appeal and quashed the deportation order. On 3 October 2003, the Appeal Committee granted the Secretary for Security leave to appeal.
Held: The appeal was dismissed.
(1) The right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment was a fundamental human right. The Convention against Torture had been adopted to promote protection of this right, and a central safeguard of that Convention was the obligation under Article 3(1) that no State Party return a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture (paras. 12).
(2) In exercising the power to deport, the appellant had adopted a policy of not deporting a person to a country where his claim that he would be subjected to torture was considered to be well founded. For the purposes of judgment, it was assumed that the appellant had a legal duty to follow that policy as a matter of domestic law (paras. 34).
(3) The appellant's determination of whether a potential deportee's claim that he would be subjected to torture upon deportation to a given country was well founded had to be made fairly; failure to do so would constitute an unlawful decision (para. 5).
(4) There was no universal set of standards applicable in all circumstances; the appropriate standard of fairness would depend on an examination of all aspects relating to the decision in question, including its context, nature and subject matter. In the context of the exercise of the power to deport a person who had claimed he would be subject to torture if sent to the intended country, the determination of whether that potential deportee's torture claim was well founded was plainly one of momentous importance, and, accordingly, demanded high standards of fairness. If, in judicially reviewing a determination, the courts decided that the high standards of fairness had not been met, the relevant determination would be unlawfully made (paras. 435).
(5) In determining a potential deportee's torture claim in accordance with the policy, relying on an unexplained decision by UNHCR about a potential deportee's refugee status, without independently assessing that person's torture claim, would fall below the standard of fairness required. In the present case, the appellant's reliance on UNHCR's unexplained rejection of the respondent's refugee status without any independent assessment of his torture claim fell well below the expected high standard of fairness. This reliance left the appellant in a state of ignorance as to the reasons for that rejection, and about whether rejection of recognition as a refugee was relevant to his torture claim, and she was therefore unable to inform the respondent or the court of the reasons for that determination. Accordingly, the deportation order was invalid and had to be quashed (paras. 478 and 61).
(6) The protections afforded by the Refugees Convention and the Convention against Torture overlapped; an individual's circumstances would often engage both Conventions. However, a determination that a person was not a refugee within the meaning of the Refugees Convention would not necessarily mean that the requirements of the Convention against Torture were satisfied (para. 57).
(7) The appellant's determination of whether a torture claim was well founded would usually require her to wait for a determination by UNHCR. If a determination by UNHCR was favourable, it would be proper for the appellant to give weight to that and accept it. If a determination by UNHCR was unfavourable, that would not relieve the appellant of her duty to conduct an independent assessment of the torture claim, as UNHCR might have rejected the refugee claim for a reason not relevant to the torture claim. Any indication that UNHCR's unfavourable determination was due to a reason irrelevant to the torture claim would make it inappropriate for the appellant to give weight to that decision in determining whether a torture claim was well founded. Situations could exist where a person was not recognized as a refugee but could still resist return on the ground that it would place him in peril of being tortured (paras. 5760 and 69).
(8) The...
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