A torture claim applicant has won a judicial review against the Torture Claims Appeal Board after one of its adjudicators refused to adjourn the hearing even though the claimant was suffering from pregnancy-induced pain.
In a judgment handed down on Tuesday, Court of First Instance Judge Amanda Woodcock said, agreeing with the claimant’s counsel, that “the tone of the adjudicator and the failure of the adjudicator to acknowledge what the applicant had said and deal with it properly and fairly means the adjudicator did not adhere to a high standard of fairness and there was not only an error of law made but procedural irregularity.”
“The adjudicator dealt with the applicant’s well‑being in a most perfunctory manner,” the judge added.
The claimant, Villarico Loutherliz Talag, is from the Philippines and worked as a domestic worker in Hong Kong. When her contract was terminated in 2014, she overstayed her visa and surrendered to the Immigration Department, filing a non-refoulement protection claim. Her claim was dismissed by immigration and she lodged an appeal with the Torture Claims Appeal Board.
During an oral hearing with the board on September 26, 2016, Talag was eight-and-a-half months pregnant, and told one of the adjudicator’s staff members that she was feeling unwell. She said she was experiencing contractions and was previously hospitalised for five days. She asked for an adjournment but the staff told her to directly apply with the adjudicator. During the hearing, the interpreter informed the adjudicator that Talag was “overdue to give birth.”
According to the judgment, “The adjudicator’s immediate response is ‘Well, I’m not going to adjourn the hearing. If she leaves the room then I will go up and write my decision. I won’t organise another hearing for her.’ He then said to her, ‘As I said, I already know about the case so there’s no point holding another hearing.'” This is despite the fact that “it would have been visibly obvious to the adjudicator that she was pregnant,” as she was in the late stages, Woodcock wrote.
The claimant said she did not wish to answer the adjudicator’s questions and the hearing was adjourned. She gave birth half an hour later. When the adjudicator dismissed her appeal four months later, the conversation was not mentioned.
‘Lack of compassion and fairness’
Judge Woodcock wrote that the adjudicator’s “clear cynicism” was unacceptable.
“Despite her obvious pregnancy, he undoubtedly assumed that a complaint of pain was an excuse to adjourn the hearing,” she wrote. “He did not stop to consider [if] the complaint may have been genuine. She at one point can clearly be heard on the audio recording drawing in a deep long breath as if in pain yet if he had any doubts, he still made no enquiry of her situation to ascertain if it is genuine.”
“The fact he did not make one enquiry as to the nature of her pain or whether she was actually due to give birth having been told she was overdue is an unfortunate indication of his cynicism. The fact he so blatantly pre-empted her request for an adjournment and then dismissed it meant he did not believe her before she had had a chance to be heard,” she wrote, adding that the adjudicator’s response was “curt and unsympathetic.”
Senior Counsel Gerard McCoy, who represented the claimant and was instructed by Vidler & Co, described the reply as “grotesque for a case with human rights dimensions.” Judge Woodcock also noted that the adjudicator failed to give reasons for refusing an adjournment, which amounts to an “error of law.”
“What the adjudicator did not ask her and what he threatened to do without asking her any questions showed such a lack of compassion and fairness that that is enough to show procedural irregularity,” she ruled in quashing the appeal board’s decision.
Isaac Shaffer from Justice Centre – which assisted with the case – said that over 90 per cent of appeals before the Torture Claims Appeal Board are made without legal representation, which he says is “alarming” given the “critical importance” of the proceedings. Only 0.5 per cent of appeals are successful.
Shaffer called for more transparency and accountability with these hearings, adding that there can be “no reasonable need for these hearings… to be held in private.”
“Equally the failure to publish judgements of the Board so that the public cannot see the quality of decision-making must not continue,” he said.
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