Ah v. Torture Claims Appeal Board and Another

HCAL 34/2016

[2018] HKCFI 377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 34 OF 2016

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REASONS FOR JUDGMENT

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1.Leave was granted for the applicant to apply for judicial review from the decision of the 2^nd respondent refusing the applicant’s claim for non‑refoulement protection under the Unified Screening Mechanism (“USM”) and the decision of the Torture Claims Appeal Board (“TCAB”).

Background

2.I need only refer briefly to the facts as the facts in this case have been fully recited in the Form 86, at paragraphs 3 to 22.

3.Suffice to say that the applicant is a Bangladeshi national, born on 1 January 1976.  Due to his membership of the Awami League, he was threatened and physically assaulted by the opposition party, the Bangladesh Nationalist Party (“BNP”).  He decided to leave Bangladesh and arrived in Hong Kong on 6 October 2006 and was permitted to stay until 20 October 2006.  He applied for refugee status on 19 October 2006 and his claim was refused on 18 August 2009.  On 30 June 2014, the applicant filed his non‑refoulement claim under USM.  Following the decisions of the respondents, the applicant’s case was assessed under BOR 2 and on 17 February 2017, the Director refused the claim and the applicant filed an appeal against BOR 2 determination on 1 March 2017.

4.Ground one of the grounds of review is that both the Director and the Adjudicator applied the wrong legal test for qualifications for non‑refoulement protection as to who is a refugee at risk of persecution.  Mr Parker submitted that in relation to the application, the Director and the Adjudicator had applied the wrong legal test for determining who is a refugee entitled to non‑refoulement protection as they had applied the wrong legal test for persecution.  They each thought that the test involved two distinct requirements in that first, the applicant must qualify as a “refugee” within the meaning of Article 1A(2) under the Refugee Convention; and secondly, satisfy a further distinct hurdle under Article 33 of the Refugee Convention to qualify for non‑refoulement protection.  This approach had been derived from the formal written guidance issued to both first instance and appellate decision‑makers.  The written guidance had since been amended in the clarification letter issued by the Director to the Duty Lawyer Service on 26 January 2017.

5.On 15 November 2016, as a result of the decision in HCAL 16/2016, solicitors representing the applicant, Daly, Ho & Associates (“DHA”), wrote a letter to the first respondent and the Department of Justice pointing out to them that in the case of HCAL 16/2016, the decisions of the Director and TCAB would quash and the applicant was ordered to receive a full re‑screening of his entire claim ab initio.  The letter further pointed out that in HCAL 16/2016, the Director clarified that the person defined as a “refugee” within the meaning of Article 1A(2) of the Refugee Convention was entitled to non‑refoulement protection and there would be no further special to be met based on Article 33, it was sufficient to establish persecution risk as defined in Article 1A(2) of the Refugee Convention.

6.In a same letter, DHA sought and pointed out that the present case was postponed after the decision in HCAL 16/2016 because the applicant in this case had raised the same two grounds as had been doubt with in HCAL 16/2016 and therefore the letter proposed that in order to save time and cost, the present proceedings should be resolved in the same manner as HCAL 16/2016, that is that “the Director considers the case afresh and if necessary an appeal therefrom be provided to TCAB.”  In this regard, DHA note in particular that under the present policy concerning Article 2 of BOR, the Director will need to re‑screen the applicant’s non‑refoulement claim with respect to the additional grounds not previously recognized.  That being so, it would not be a great additional encumbrance for the thing simply to be re‑done, and could avoid the need of costly, time‑consuming legal proceedings (funded on both sides by public money) to carry on in order to trash the backward‑looking issue of the impact of the unclarified definition on the legality of the decisions in this case.

7.On 23 November 2016, the first putative respondent replied that they took a neutral stance in this proceeding.  However, the Department of Justice had remained silent.  On 2 December 2016, DHA wrote another letter to the Department of Justice informing them that an ex‑parte hearing has been set down for 19 December 2016 asking for a favourable response.

8.On 6 December 2016, DHA wrote to the court to ask for the adjournment of the leave hearing on 19 December 2016 to be adjourned to a date to be fixed.  As the Department of Justice on behalf of the second putative respondent had requested that they withhold proceedings with the leave application to avoid unnecessary cost while they consider the matter.

9.On 20 February 2017, DHA informed the court that they were still waiting for a response from the Department of Justice who is in the course of “taking instructions” and that they have been asked to seek an extension, so by letter, DHA requested for an extension of 21 days which was granted.

10.On 28 February 2017, the Department of Justice replied to DHA asking if the applicant would be prepared to withdraw grounds one and two in his Form 86.  In response, DHA on 10 March 2017 replied that the applicant would be prepared to discontinue ground two but and that in relation to ground one, although the applicant is prepared to desist from seeking declaratory relief, they still maintained “that the assessment of persecution risk nevertheless was flawed and the decision of the Director must be quashed”.  And stated that the applicant maintained ground three in the Form 86.  In the pre‑ultimate paragraph in the letter, DHA invited the Department of Justice to consider the proposal set out in their letter of 15 November 2016 to dispose of this proceeding by consent and asked that there be a reply by 13 March 2017. And on 16 March 2017, DHA sent a letter to this court reported that since there was no forthcoming reply from the Department of Justice that they intended to proceed with the application and hearing on the remaining ground.

11.So the substantive hearing of judicial review was set down on 19 December 2017.

12.And it was only sense that the court was informed that the Department of Justice on behalf of the Director of Immigration has decided to agree to the terms of the applicant’s consent order on 18 December 2017 at the vary door of the court as the hearing was set down for 19 December 2017.

13.On 19 December 2017, counsel for the Director of Immigration was asked to explain why there was such inordinate delay in consenting and the reply was that they were taking instructions.  This court has failed to understand why it has taken the Department of Justice such a long time to take instructions in view of the decision of HCAL 16/2016.  As this delay was totally caused by the inordinate action of the Department of Justice in this case resulting in the hearing on 19 December 2017, I had no alternative but to order cost against the Department of Justice.

Mr Timonthy Parker, instructed by Daly, Ho & Associates, assigned by DLA, for the applicant

The 1^st Putative Respondent was not represented and did not appear

Ms Chan Lok Yan Joyce, Government Counsel instructed by the Department of Justice, for the 2^nd Putative Respondent