Xie Jing Feng v. Director of Immigration and Another

CAMP 28/2017

[2018] HKCA 145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO. 202 of 2016)

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

I. Extension of time to appeal

1.1Patrick Li Jon 28 June 2017 refused to grant the applicant leave to apply for judicial review against the decision of the Director of Immigration (‘Director’) dated 23 November 2015 and the decision of the Torture Claims Appeal Board (‘TCAB’) dated 12 August 2016.  The applicant’s application for leave to apply for judicial review was dated 11 November 2016. 

1.2On 30 June 2017 the applicant filed a notice of appeal against the Judge’s decision.  In the Court below the Judge did not invite the Director or TCAB to make representation. This Court directed the Director and TCAB to file evidence and submission to the applicant’s appeal.  The Director duly filed evidence and submission.  The applicant has filed an affirmation in support of his appeal and an affirmation in reply to the Director’s submissions.  This Court will now deal with the applicant’s application on paper. 

1.3The nature of the applicant’s application before us is for extension of time to appeal against the decision of the Judge.

II.    Factual background

2.1The applicant was born in China in 1957 and raised in a Christian family.  The applicant claimed he was a member of an underground Christian prayer group in Yingde, China.  He was in charge of publishing a Christian newsletter. Occasionally, the Chinese police would raid the meetings of the prayer group and arrest the organizers or speakers.  The arrestees would be beaten and demanded to pay a bribe for their release.  Under such circumstances, the applicant left China in 1998 for Canada where he applied for refugee status and was granted Canadian citizenship in about 2001.

2.2About 19 November 2008, the applicant went to India for business.  He was arrested by the Indian police while travelling with his Malaysian assistants from Baroda to Mumbai.  They allegedly found a bag of methamphetamine at the trunk of his vehicle.  The applicant claimed being tortured by the Indian police during the initial investigation.  He was eventually detained in Baroda Central Prison where he was ill‑treated by the prison authority.

2.3He eventually managed to escape from prison in April 2011 and arrived at Nepal.  He was detained by Immigration Department of Nepal for illegally entering Nepal.

2.4After detention for about two months, he was then arrested by the Narcotics Control Bureau (‘NCB’) of Nepal for alleged drug trafficking.  He was detained for further investigation by NCB.  Eventually, he was transferred back to the detention center under the Immigration Department of Nepal.

2.5At the detention center, an agent approached the applicant and offered to arrange a Malaysian passport for him to leave Nepal.  He paid the agent US$3,000.  The forged passport was in the name of ‘David Chow’.  He managed to leave Nepal.  On the day of departure, he was escorted by an immigration officer to the International Airport of Nepal.  He used the forged passport to travel to Bangkok and stayed there for two weeks.

2.6On 20 November 2011, he travelled from Bangkok to Hong Kong for transit to Shekou in the Mainland.

2.7On the same day, the applicant was turned back to Hong Kong from Shekou for presenting a forged Malaysian passport to the Mainland immigration authority for arrival clearance and refused permission to land in Hong Kong. 

2.8On 24 November 2011 the applicant was charged and convicted in Hong Kong of the offence of ‘possession of a forged travel document’ and was sentenced to eight months’ imprisonment.

2.9On 30 April 2012, upon completion of the prison term, the applicant was admitted to the Castle Peak Bay Immigration Center pending his deportation from Hong Kong.  On the same day, the applicant was again arrested by the police for money laundering and was subsequently convicted and sentenced for four years and four months’ imprisonment on 23 August 2013.

2.10On 14 January 2013, the applicant first lodged a torture claim by a written representation but on 15 February 2013, the applicant was informed that he was not entitled to non‑refoulement protection in Hong Kong as he failed to meet the requirement under section 37W(1)(b) of the Immigration Ordinance, Cap. 115 (‘IO’).

2.11On 30 April 2013, the applicant wrote a letter to Immigration Department requesting to reconsider his case.

2.12On 27 January 2015, the applicant wrote a letter to Immigration Department stating that he wished to be deported back to Canada.

2.13On 18 March 2015, the Indian authorities submitted to the Hong Kong Government an extradition request of the applicant.

2.14Upon the applicant’s release from prison on 21 March 2015, he was arrested under a warrant of arrest again and have been remanded in the Lai Chi Kok Reception Center up to now.

2.15On 16 April 2015, the applicant raised a non‑refoulement (i.e. non return) claim by a written representation.

2.16On 20 October 2015, the Director conducted a screening interview with the applicant in the presence of the applicant’s assigned duty lawyer.

2.17On 23 November 2015, the Director rejected the applicant’s non‑refoulement application (‘the Director’s Decision’). 

2.18On 27 January 2017 the Immigration Department invited the applicant to submit additional facts on all applicable grounds for non‑refoulement protection including any other absolute and non‑derogable rights under Article 2 of the Hong Kong Bill of Rights (‘HKBOR’).

2.19The applicant through his duty lawyer submitted further documents and information in support of his said claim.  The Director by Notice of Further Decision dated 29 March 2017 rejected the application (‘the Further Decision’).  This decision is not the subject matter of the judicial review before the Judge.

2.20The applicant filed an appeal to the TCAB against the Director’s Decision on 2 December 2015 and the hearing was conducted on 10 August 2016 before Mr William Lam, an Adjudicator of TCAB. The applicant was represented by the Duty Lawyer Services. The applicant elected to testify. The TCAB rejected the appeal (‘the TCAB Decision’).

2.21The applicant lodged the application for judicial review on 11 November 2016. Thereafter he lodged an appeal on 10 April 2017 against the Further Decision. The hearing in respect of the applicant’s appeal / peitition was scheduled for 1 December 2017.

2.22The basis of the applicant’s claim for non‑refoulement was that if he was extradited to India,

1)  he would face unfair judicial process.

2)  he would be harmed or killed by those persons who assisted his escape from the prison in India to avoid exposure of the plot.

3)  he might be harmed or killed by police officers taking revenge because of his escape.

4)  he might be killed by Indian police officers for attempting to escape again.

5)  further, if he was returned to Canada, he would possibly face another extradition proceeding and ultimately end up in India.

III.  The Decisions below

1)     The Director’s decision

3.1The Director assessed the applicant’s claim on all applicable grounds, including torture risk, HKBOR Article 3 risk and persecution risk. In respect of torture risk, the Director considered that the applicant’s perceived risks of fear treatment materializing upon his surrender to India under the Fugitive Offenders Ordinance, Cap. 503 to be unlikely.

‘ 25.  the claimed risk of the feared ill‑treatment materializing is assessed to be unlikely and it is not accepted that there are substantial grounds for believing that you will be subjected to torture by upon your surrender to India.

26.  Upon taking into account relevant COI and the asserted primary facts of your case, the assessment is that there is no sufficient fact to suggest that the Indian government has condoned the malpractices of some police officers or prison officers, or has failed to discharge its normal state functions of providing security to you.’

3.2Article 3 of the HKBOR provides that :

‘ No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.’

3.3In respect of Article 3, the Director held that :

‘ 28.  The person who invokes the protection of BOR 3 risk must meet two main requirements that (a) the ill‑treatment (physical and/or mental suffering) he would face if expelled attains a minimum level of severity and (b) he faces a genuine and substantial risk of being subjected to such ill‑treatment. The threshold is very high, and it generally involves actual bodily injury or intense physical or mental suffering.

29.   For the reasons as set out in the assessment on risk as per paragraph (IV)(A) above, it is not accepted that you face a genuine and substantial risk of being subjected to ill‑treatment under BOR 3 upon your surrender to India.’

3.4In respect of persecution risk, the Director stated that in order to establish a persecution risk :

‘ A person should be considered as having a persecution risk for the purpose of his non‑refoulement claim if:

(a)   he, owing to well-founded fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country; and,

(b)   his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion should he be expelled or returned to the frontiers of a Risk State.’

3.5The Director held that the applicant is outside his country of nationality, (i.e. he is not an Indian), therefore he failed to meet the basic eligibility criterion to be a refugee. The Director further held :

‘ 32.  Moreover, your feared ill-treatment does not fall within the definition of ‘persecution’.  In accordance with your own statements, the police officers or prison officers who ill‑treated was mainly for the purpose of extortion and/or getting a promotion, which has nothing to do with any of the reasons as marked in bold at 9(a) of the Notice stated at paragraph 30 above.

33.  Therefore, the assessment is that your case does not warrant non‑refoulement protection on the ground of persecution risk.’

3.6The Director also considered other documentary evidence submitted by the applicant and held that ‘these documents do not advance his case’. 

2)     The TCAB’s Decision

3.7In essence, the Adjudicator of the TCAB held that the extradition request by the Indian government was not a consideration of the TCAB and which would only deal with non‑refoulement claim to the applicant’s home country, i.e., Canada. 

3.8However, the Adjudicator went on to consider the non‑refoulement claim in relation to India.  He dismissed the appeal of the applicant after considering his credibility, various Country of Origin Information (‘COI’) and additional documents.

3)     The Judge’s Decision

3.9The Judge in paragraph 27 of his decision summarized the factual basis in which the Director rejected the applicant’s claim for ill‑treatment if he surrendered to India.

3.10The Judge accepted that the Adjudicator had erred in law in holding that the extradition request by the Indian government was not a consideration of TCAB which would only deal with non‑refoulement claim to the applicant’s home country, i.e., Canada. 

3.11The Judge held that :

‘ 42.  In my judgment, the applicant may lodge non‑refoulement claim by virtue of s. 37W (2)―he is a person subject to a surrender request to a place other than a place he had right of abode.

43.  Further, according to ss. 13 (2B) of the Fugitive Offenders Ordinance (Cap. 503), even subject to an order for surrender to a prescribed place, the applicant is entitled to final determination of his torture claim according to Part VIIC of the Immigration Ordinance (Cap. 115).’  

3.12However, the Judge held that this error of law is academic because the Adjudicator actually went on to consider the applicant’s non‑refoulement claim in relation to India and rejected his case.  

3.13In respect of the applicant’s criticism that the Adjudicator failed to apply the principles set down in the authorities, the Judge held that :

‘ 48.  In my view, the authorities held that the burden is on the applicant to prove the primary facts and convince the Director and the Adjudicator that what he said was true on the balance of probabilities. An applicant is expected to conduct his own investigation and obtain information essential to prove his case especially when he was represented.

49.  In the absence of any request for assistance, the high standards of fairness did not require the Adjudicator or the Director to find out any such information for the represented applicant.

50.  In the present case, the applicant was assisted by counsel.  He was given full opportunity to elaborate his case in the oral hearings.  He had ample time to prepare his case.

51.  It is beyond dispute that the offence of ‘possession of a forged passport’ and ‘money laundering’ involved dishonest conduct.  In my view, the Adjudicator should not be criticised for drawing adverse inference against the applicant after considering all the evidence.’

3.14The Judge had also considered the applicant’s criticism that the Adjudicator did not mention a letter referred to in the written submission by the applicant’s lawyer during the oral hearing.  The Judge held that the letter only repeated what the applicant had already said in support of his claim and the fact that the Adjudicator did not mention the letter would not affect the validity of his decision.  The Judge held that :

‘ 54.  Having considered the decisions of the Director and the Adjudicator, I agree with their reasoning set out above. The story of the applicant was not credible. I reject the grounds in support of the leave application. There is no error of law or procedure.

55.  In my judgment, the Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success, I refuse leave for judicial review.’

IV.  Principles

4.1As the application for judicial review is concerned with a claim for humanitarian protection, the relevant factors to consider the applicant’s claim for extension of time to appeal against the Judge’s refusal are as follows :

1)  the length of the delay;

2)  explanation for the delay;

3)  merits of the substantive application;

4)  prejudice; and

5)  questions of general public importance. 

(1)  Length for delay

4.2The applicant has 14 days to appeal from the Judge’s decision.  In this case the Judge’s decision was given on 28 June 2017 and the deadline for the appeal falls on 12 July 2017.  On 30 June 2017 the applicant filed a handwritten notice to appeal against refusal to grant leave for judicial review.  Thereafter, there was correspondence from the Registrar of the High Court advising the applicant of the proper procedure to appeal against the refusal.  On 7 July 2017 the applicant filed a ‘Summons to Apply for leave to Appeal’ with grounds of appeal and ‘intended Appeal against refusal of leave of judicial review.’ 

4.3Further advice was given by the Registrar.  On 22 September 2017 the applicant filed a summons for extension of time to appeal against the order of the Judge.  In the present case, counting from 22 September 2017 there was a delay of 73 days after the 14 day deadline for lodging the appeal had expired.

(2)  Explanation for the delay

4.4The applicant stated that after the Judge handed down his decision, he had informed the Court by letters dated 30 June 2017 and 2 July 2017 of his intention to appeal.  

4.5The position is that the Court had informed the applicant that he must file a proper notice of appeal and follow the rules and procedures.  He did not do so.  It was only after further directions from the Court that he filed the present application for extension of time to appeal.  But bearing in mind that the applicant is acting in person, we would focus our attention on the merits of the applicant’s case and the other relevant factors rather than on the delay and explanation for delay.

(3)  Grounds of appeal

4.6The applicant advanced the following grounds of appeal :

(1)  The adjudicator of the TCAB erred in law and interpretation of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT Convention’).

(2)  The Director and adjudicator of TCAB failed to attain the high standard of fairness in assessing and determining the applicant’s non‑refoulement claim according to the policy and the CAT Convention.

(3)  There are substantial grounds for believing that the applicant would be in danger of being subjected to torture if he is being extradited to India.  The decisions are made without regard to Article 3(1) of the CAT Convention.

(4)  The conduct of the screening interview, assessment and determination of the applicant’s claim by the officers of the Immigration Department raises an inherent conflict of interest, lack of impartiality and independence as the Immigration Department is duty bound to enforce the immigration policy of the Hong Kong government.

(5)  The Director of Immigration and the adjudicator of the TCAB failed to properly investigate and obtain relevant information and materials on the general condition and state of affairs of India which the applicant does not want to return to.

(6)  The decision of TCAB is regarded as ‘Wednesbury’ unreasonable.

(7)   The appeal involves matters of great and general importance and substantial injustice has been done.

V.    The legal framework

5.1Foreigners who entered Hong Kong without the Director’s permission, and visitors who overstayed their limit of stay allowed by the Director or were refused entry by the Director upon arrival at Hong Kong (collectively ‘illegal immigrants’) are subject to be removed from Hong Kong in accordance with the IO.

5.2Since 1992, Hong Kong has been a party to the CAT Convention which, pursuant to Article 3(1), prohibits the refoulement (return) of an individual to another state where there are substantial grounds for believing that they would be in danger of being subjected to torture.

5.3In June 2004, the Court of Final Appeal ruled in Sakthevel Prabakar v. Secretary for Security ([2004] 7 HKCFAR 187) that given the momentous importance of a determination on torture claims to claimants, high standards of fairness must be demanded in the making of such a determination.  It made clear that high standards of fairness applied to the assessment of claims for protection under the CAT Convention and that the Director could not rely on decisions made by the United Nations High Commissioner for Refugees (‘UNHCR’) as determinative of a claim but had to conduct an independent assessment of each torture claim.

5.4The Director then introduced an administrative screening mechanism for torture claims thereafter.

5.5On 13 July 2012, the Legislative Council amended the IO to provide the torture screening mechanism with a statutory footing.  The statutory scheme includes measures on the scope of non‑refoulement protection, a detailed claims and appeals procedure, circumstances when medical examination of the claimant is warranted, specific powers of detention and recognizance, and provision for substantiated claimants to work in exceptional circumstances.

5.6In December 2012, the Court of Final Appeal ruled in Ubamaka v. the Secretary for Security (2012) 15 HKCFAR 743 that, inter alia, if there are substantial grounds for the Immigration Department to believe there is a personal and substantial risk of an absolute and non‑derogable right under Article 3 of the HKBOR of a person not having the right to enter and remain in Hong Kong being violated by the receiving country should the person be sent there, it constitutes a ground for restraining the Government of HKSAR from proceeding to remove / deport that person to that country.

5.7On 25 March 2013, the Court of Final Appeal ruled in its judgment in C & Ors v Director of Immigration (FACV 18-20/2011) that insofar as it is the practice of the Director to have regard to persecution claims, he must independently determine whether the claimant’s fear of persecution is well-founded prior to exercising the power of removal or deportation.  

5.8The Government has commenced a Unified Screening Mechanism (‘USM’) on 3 March 2014 to determine non-refoulement claims lodged by foreigners subject or liable to be removed from Hong Kong against removal to another country on other applicable grounds including, apart from torture under the CAT Convention, torture or cruel, inhuman, or degrading treatment or punishment (‘CIDTP’) under Article 3 of the HKBRO (‘BOR 3’), and persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (‘the 1951 Refugee Convention’).  Procedures of the USM follow that of Part VIIC of the IO to ensure high standards of fairness are met in the screening of non‑refoulement claims.

VI.  Grounds of appeal

6.1Although the applicant lodged his torture claim before the commencement of the USM, it was processed as a non‑refoulement claim under the USM under the applicable administrative transitional arrangements. 

6.2Turning now to the applicant’s grounds of appeal :

1)     Error of law by the Adjudicator

6.3In our view this is not reasonably arguable.  The Judge had already recognised that the Adjudicator was wrong in saying that the applicant’s allegation of the risk of torture in India was irrelevant to his claim for non‑refoulement protection, but, as the Adjudicator went on to consider his claim of non‑refoulement protection in relation to India and concluded that the claim was not credible, this so-called error of law would not assist the applicant.  

2)     High standard of fairness

6.4This point is also not reasonably arguable.  The applicant was given every reasonable opportunity to establish his case :

(1)  He was given oral hearings with legal representation before the Director and Adjudicator.

(2)  The applicant’s claim was properly heard and assessed.

(3)  The Director and Adjudicator had taken into account country of origin information, evidence of torture, the applicant’s activities that make him vulnerable to torture if return and the applicant’s credibility.

(4)  The applicant argued that he was not given further opportunity to present his case or to provide further documentation and information.  Further, the provision of the policy was not followed in that the applicant was not given a ‘Mind to refuse letter’ before the Director rejected his claim.  In our view, this would not assist the applicant.  Even assuming that there were such omissions, the applicant had the opportunity of presenting his case when he appealed to the TCAB.  Furthermore, he was represented by very experienced counsel both before the Director and the TCAB.  In the circumstances, the applicant’s complaint on procedural irregularity and the lack of high standard of fairness is not reasonably arguable. 

3)     Substantial grounds for believing that the applicant would be in danger of being subject to torture

6.5This ground is not reasonably arguable.  It is after due consideration of all the available evidence and hearing the applicant’s case by his legal representative, the Director and Adjudicator came to the conclusion that the applicant is not a credible witness and his story is not to be believed.  In relation to assessment of credibility of witnesses, it is well established that the appellate court will not disturb the finding of the lower court unless it is demonstrated that the finding is plainly wrong.  Despite the lengthy submissions of the applicant, it has not been shown that it is reasonably arguable that the finding on credibility is plainly wrong.

4)       Inherent conflict of interest, lack of impartiality and independence

6.6This point is not reasonably arguable.  We do not accept that conflict of interest existed by reason of the fact that the Immigration Department was duty bound to enforce its immigration policy.  The USM is the objective safeguard.  It was introduced by reference to the requirement of high standard of fairness and other human rights safeguards as pronounced by the highest Court of Hong Kong.  Neither it is reasonably arguable that the Director and the Adjudicator were bias towards the applicant.

5)     Failure of the Director and Adjudicator to investigate and obtain relevant information on the general conditions and affairs of India                  

6.7This is not reasonably arguable.  Both the decisions of the Director and Adjudicator contained a list of references which clearly showed the extent of the investigation by the Director and Adjudicator about the relevant condition of India by reference to its penal system, prison system, human rights conditions.  

6)     Decision of TCAB being ‘Wednesbury’ unreasonable

6.8This is not reasonably arguable.  Despite the error of law by the Adjudicator, the finding of fact cannot be said to be ‘Wednesbury’ unreasonable when the Director had in the first instance come to the same view on credibility concerning the applicant’s claim for torture and ill-treatment.

7)     Great and general importance and substantial injustice

6.9The applicant further submitted that the appeal is based on grounds of law of great and general importance and that substantial injustice had been done.  We disagree, having considered the grounds of appeal of the applicant.

VII. Conclusion

7.The Further Decision was not the subject matter of the application before the Judge.  He had not expressed any view on the matter.  Likewise, we will refrain from expressing any view on the Further Decision.  Based on the existing material, we are of the view that the applicant’s claim is not reasonably arguable.  We will not grant leave and will dismiss the application.  

VIII.  Costs

8.There will be no order as to costs of the application.

The applicant, unrepresented

Mr Louie Chan, Government Counsel, of Department of Justice, for the 1^st Putative respondent

Wilkinson & Grist, for the 2^nd Putative respondent