High Standards of Fairness

"Fairness" is impartial, non-discriminatory and just treatment; and "standard" is a level of quality or attainment, but what are "high standards of fairness?" Institutions or actors in any systems have their roles to play, and in applying the principles, rules in the processes, is it fair enough say for a domestic institution to adopt the decision of an international institution? Hong Kong's top court ruled in the Prabakar case 2004 that such a practice was not fair enough, substantively and procedurally.

In Hong Kong, the high standards of fairness apply to the right to be free from torture, and other inhumane or degrading treatment or punishment, fear of persecution and other non-derogable rights including the right to life. The administration has to give reasonable opportunities to claimants to establish their claims. Although the claimants bear the burden of proof throughout, the administration has to take proactive care to avoid missing anything that would be in the claimants' favour.

The particular matters that the administration has to take into account include the lack of protection of claimants' non-derogable rights in their countries of origin and the difficulties for them to furnish documentary evidence. It would also be appropriate for the administration to draw attention to matters that obviously require clarification and elaboration. Furthermore, the administration has to understand the relevant country of origin's conditions in the past and at present before making a determination.

On the other hand, the administration has no duty to probe or inquire where the objective circumstances make it reasonably clear that what can be said are all said. Today, I witnessed in one case that every reasonable opportunity was afforded to a claimant to establish a claim in accordance with the high standards of fairness. From the governance perspective, I would say Hong Kong's Unified Screening Mechanism Procedures (introduced in March, 2014) is a smart compliant model that other jurisdictions may wish to follow!