Sarah Victor v. The Director of Immigration

HCAL 608 & 621/2018

[2018] HKCFI 1108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 608 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 621 OF 2018

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(Heard together)

Before: Hon Chow J in Court

Date of Hearing: 16 May 2018

Date of Decision: 23 May 2018

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DECISION

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INTRODUCTION

1.Pursuant to the court’s direction given on 27 April 2018, these two applications for leave to apply for judicial review were heard together on 16 May 2018.

2.The stay of proceedings consequent upon the filing of a Memorandum of Notification of an Application for Legal Aid dated 3 May 2018 in HCAL 608/2018 and another similar Memorandum dated 15 May 2018 in HCAL 621/2018 was lifted by the court on 7 May 2018 and 16 May 2018 respectively.

BASIC FACTS

3.The Applicant in HCAL 621 of 2018 (“Romail”) and the Applicant in HCAL 608/2018 (“Sarah”) are husband and wife.

4.Sarah, a Pakistani national, is a Hong Kong permanent resident, having come to Hong Kong in 2005.

5.Romail, also a Pakistani national, entered Hong Kong illegally by boat from Shenzhen on 11 February 2009.  He was arrested on 4 August 2009.  He lodged a torture claim under the Convention against Torture on 7 August 2009, which was later treated and considered by the Director of Immigration (“the Director”) as a non-refoulement claim under all applicable grounds, including risk of torture, risk of cruel, inhuman or degrading treatment or punishment, risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees, and risk to life.  The non-refoulement claim was rejected by the Director on 22 July 2015 and 7 November 2016, and his appeal or petition against the Director’s decision was rejected by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) on 5 May 2017.

6.On 29 May 2017, a Removal Order was issued against Romail.

7.Also on 29 May 2017, Romail applied for leave to apply for judicial review of the Board’s decision (HCAL 248/2017).

8.On 22 June 2017, a Notice of Removal Order and Right of Appeal was served on Romail.  In that notice, Romail was informed that he could appeal against the Removal Order to the Immigration Tribunal.

9.By an “Acknowledgement of the Summary of Facts and Reason for Removal” signed by Romail and dated 22 June 2017, he acknowledged receipt of a copy of the written Summary of the Facts and Reasons for Removal which had been explained to him by the Chief Immigration Assistant with the assistance of an interpreter, and that he understood the contents thereof.

10.By a “Declaration of Intention Not to Appeal/Declaration of Abandonment of Appeal” signed by Romail and dated 22 June 2017, he declared that, having read and understood the Notice of Removal Order and Right of Appeal, he did not intend to appeal.  The contents of this document were, apparently, also interpreted to him by an interpreter.

11.Pausing here, I should mention that, at the hearing on 16 May 2018, Romail alleged that the contents of the two documents mentioned in paragraphs 9 and 10 above were only briefly explained to him by the interpreter and he was not aware of his right of appeal against the Removal Order.

12.Romail’s application for leave to apply for judicial review in HCAL 248/2017 was dismissed by Deputy High Court Judge Woodcock on 24 November 2017.  He appealed against the decision of the Deputy Judge by a Notice of Appeal dated 30 November 2017.

13.On 16 January 2018, Romail and Sarah were married in Hong Kong.  According to them, they first met each other in Hong Kong in 2010.

14.On or about 23 March 2018, Romail made an application for a dependant visa with Sarah as his sponsor (“the DV Application”).  That application is currently under consideration by the Director.

15.On 27 March 2018, the Court of Appeal dismissed Romail’s appeal against the decision of the Deputy Judge (CACV 274/2017).

16.On 6 April 2018, Romail’s recognizance came to an end and he was detained in Castle Peak Bay Immigration Centre (“CIC”) pending his removal from Hong Kong.

17.On 10 April 2018, Sarah filed her Form 86.  The Director is named as the proposed respondent to the application, but the decision sought to be challenged is not set out or identified in the Form 86.

18.On 11 April 2018, Romail filed his Form 86, seeking to challenge the “23 March 2018 decision” of the Director.

19.In their Forms 86, Sarah and Romail ask for an oral hearing of their respective applications for leave to apply for judicial review.

20.In view of the failure of Sarah and Romail to identify the decision or nature of the decision sought to be challenged in their Forms 86, or to set out the relevant background facts in their supporting affirmations, the court directed that notice of the applications be given to the Director so that he could file relevant evidence and attend the oral hearing to assist the court in determining whether to grant leave to apply for judicial review.  The Director filed evidence setting out the relevant background facts on 8 May 2018.

DISCUSSION

21.As earlier mentioned, in his Form 86, Romail purports to challenge a decision allegedly made by the Director on 23 March 2018, that being the date of the DV Application.  However, as confirmed by the Director, the DV Application is currently under consideration, and he has not yet made any decision on the DV Application.  Further, the Director has confirmed that he has not made any relevant decision concerning Romail on 23 March 2018.  In these circumstances, it is obvious that Romail’s application is pre-mature and/or misconceived.

22.In so far as Sarah’s application is concerned, her Form 86 is patently defective in that it fails to identify any decision sought to be challenged by way of judicial review (see Vu Van Khanh v Director of Immigration, CACV 22/2018, paragraph 9).  In so far as her application is intended to mirror that made by Romail, it is likewise pre-mature and/or misconceived.

23.At the hearing on 16 May 2018, Romail and Sarah raised a few other complaints against the Director.

24.First, they complain that Romail was denied visits by Sarah on 7 April 2018 and by a friend on 8 April 2018 at CIC.  It appears from a letter dated 19 April 2018 from the Immigration Department to Romail and Sarah’s former solicitors (Wong & Co) that the reason for denial of visits was that Romail had been diagnosed by the in-centre Medical Officer of CIC to be physically unfit for social visit on 7 and 8 April 2018, but after medical review on 9 April 2018 his condition was found improved and social visit was resumed.  Sarah confirmed at the hearing that she had been able to visit Romail at CIC since 9 April 2018.  This complaint about denial of social visit on 7 and 8 April 2018 has, I consider, no relevance to the question of whether leave to apply for judicial review should be granted in the present applications.

25.Second, they complain that Romail was not fully explained his right of appeal against the Removal Order to the Immigration Tribunal and that, in any event, the time for appeal, namely, 24 hours, was too short to enable Romail to formulate and put forward grounds of appeal.  The complaint that Romail did not understand his right of appeal is, on the face of it, contrary to the two documents signed by him on 22 June 2017 referred to in paragraphs 9 and 10 above.  The time limit for appeal is set by Section 53A(2) of the Immigration Ordinance, Cap 115.  In any event, the only possible grounds of appeal against a removal order, as stated in Section 53A(1), are that (i) he enjoys the right of abode in Hong Kong, (ii) he has the right to land in Hong Kong by virtue of section 2AAA, or (iii) he had at the date when the removal order was made the permission of the Director to remain in Hong Kong.  None of these grounds could possibly be applicable to Romail on the facts of his case.  Any appeal against the Removal Order was doomed to failure.  It follows that Romail has not suffered any prejudice for not appealing against the Removal Order.

26.Third, they complain that Romail should not have been detained in CIC pending the Director’s consideration of the DV Application.  The principles for determining whether a person may be detained pending removal under Section 32 of the Immigration Ordinance are well established.  The evidence indicates that a review of Romail’s detention was carried out on 2 May 2018.  No valid ground has been raised to show that the detention of Romail is, or has become, unlawful. 

27.Fourth, they reiterate that Romail’s life will be at risk should he be sent back to Pakistan.  This compliant, however, has been dealt with in the previous proceedings ending with the judgment of the Court of Appeal in CACV 274/2017 and is not something which can be re-opened in the present applications.

28.Lastly, Sarah submits that the court should adjourn the present applications for 3 to 4 weeks pending the outcome of the DV Application.  However, the outcome of the DV Application will have no impact on the outcome of the present applications for judicial review.  The purpose of the adjournment, as I understand it, is that Romail will not have to return to Pakistan pending considering of the DV Application.  However, his physical presence in Hong Kong is not required for the Director’s consideration of the DV Application.  There is, I consider, no proper legal grounds to justify adjourning the present applications.  As to whether Romail should be required to leave Hong Kong in the meantime, that is a matter for the Director and not for the court to decide.

DISPOSITION

29.For the foregoing reasons, the two applications are not reasonably arguable and are dismissed.  I also make an order nisi that the Applicants shall pay the Putative Respondent’s costs of resisting these applications, to be taxed if not agreed.

The applicants acting in person

Ms Patricia Lam, Government Counsel of the Department of Justice, for the Putative Respondent in both cases