CH v Director of Immigration; BK v Director of Immigration and Another

Judgement Year:  2011
Citation:  CACV 59-60/2010

The appellants appealed against Andrew Cheung J’s judgment (HCAL 24/2009 and HCAL 31/2009: see our summary of the judgment) which dismissed their applications for judicial review. Their appeal was dismissed by the Court of Appeal.

Hartmann JA, delivering the leading judgment with which the other judges unreservedly agreed, agreed with the judge at first instance that the Convention does not stipulate that any particular immigration status should be granted to torture claimants. His Lordship also agreed that the Director had a large degree of discretion with regard to matters concerning permission to stay and extensions of stay and that it was for him to decide how to deal with torture claimants pending the determination of their claims.

His Lordship rejected the contention by appellants’ counsel that the delay engendered by the Director’s policy fell short of the high standards of fairness required. He held that the Director’s policy, allowing a wide degree of discretion, could include a prompt examination where context required it, for example where there were physical signs of recent torture. However, the torture claimant must at least point this out to put the Director’s officers on notice.

Hartmann JA also rejected the submission that the Director had fettered his discretion with his policy of not granting extensions of stay. He held that there was no evidence to suggest that the Director would not take exceptional circumstances into account.