Pa v. Director of Immirgration

HCAL 1668/2018

[2019] HKCFI 599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1668 OF 2018

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D E C I S I O N

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1.I have before me a summons issued by the Applicant on 25 January 2019 seeking to bring forward the rolled-up hearing of the present application for judicial review currently fixed for 27 June 2019 “in accordance with the court and counsel’s diaries (and in the event that a suitably early date is not available on this basis, then in accordance with the court’s diary and that of counsel for the Applicant only)”.

2.The Applicant is a non-refoulement claimant. She first came to Hong Kong from Sri Lanka on 16 March 2013 for employment as a foreign domestic helper.  Her employment contract was prematurely terminated on 18 November 2013.  She did not, however, return to her home country, and overstayed in Hong Kong until she surrendered herself to the Immigration Department on 13 January 2014.

3.On 5 February 2014, the Applicant made a non-refoulement claim on the basis that she had been subjected to a forced marriage at the age of 14 (in 1984) in her home country with a man who was 11 years older than her, and she had suffered physical and sexual abuse by her husband, as well as by 2 other men arranged by her husband, after the marriage.  For the purpose of this decision, it is not necessary to set out the details of her complaint.

4.On 14 October 2015, the Applicant’s non-refoulement claim was rejected by the Director of Immigration.  On 26 October 2015, the Applicant filed a Notice of Appeal/Petition against the Director’s decision.  On 13 January 2017, the Director rendered a further decision rejecting the Applicant’s possible non-refoulement claim based on HKBOR 2.  On 29 March 2018, the Torture Claims Appeal Board rejected the Applicant’s Notice of Appeal/Petition on all applicable grounds (“the Appeal Decision”).

5.According to the Applicant:

(1)   On 25 April 2018, she was detained by the Director pending her removal from Hong Kong.  While she was under detention, she informed the Immigration Officers and her case officer that she intended to challenge the Appeal Decision and apply for legal aid for that purpose, and that she was being assisted by Justice Centre Hong Kong (“JCHK”).

(2)   On 18 May 2018, the Applicant was informed that she would be removed from Hong Kong, and “she informed her case officer that she was appealing to the High Court and that she was being assisted by JCHK and a lawyer.  In response, the case officer informed the Applicant that the papers were ‘useless’ and no lawyer had come to visit her.  As such, she needed to return to Sri Lanka” (see paragraph 9.4 of the Form 86).

6.On the same date, ie 18 May 2018, the Applicant was removed from Hong Kong and returned to Sri Lanka.

7.It is the Applicant’s position that the Immigration Department was aware, prior to removing the Applicant: (i) of her intention and desire to launch judicial review proceedings against the Appeal Decision, and (ii) that such an application would still have been within time as at the date of the removal (see paragraph 10 of the Form 86).

8.On 16 August 2018, the Applicant commenced the proceedings herein to apply for leave to apply for judicial review of the Director’s decision on 18 May 2018 to, without any or sufficient notice, compulsorily remove the Applicant from Hong Kong to Sri Lanka (“the Decision”).  The relief sought by the Applicant include: (i) an order of certiorari to quash the Decision, (ii) an order that the Director shall use his best endeavours to facilitate the Applicant’s return to Hong Kong to enable her to prepare and bring separate judicial review proceedings in respect of the Appeal Decision and for the Applicant to remain in Hong Kong pending the outcome of the same, and (iii) a declaration that the Director’s (alleged) policy of removing persons from Hong Kong without adequate notice to allow them access to justice (“the Policy”) is unlawful.

9.On 21 August 2018, the court directed a rolled-up hearing of the application for leave to apply for judicial review and the application for judicial review (with 1 day reserved), and that any evidence which the Director intended to rely upon at the rolled-up hearing should be filed and served at least 28 days prior to the date fixed for the hearing.

10.On 6 November 2018, the Applicant separately applied for leave to apply for judicial review of the Appeal Decision.  That application, I am told, has been assigned to be dealt with by DHCJ Woodcock, and a directions hearing will take place on 13 March 2019.

11.In the meantime, by a letter dated 17 December 2018, the Applicant’s solicitors (Vidler & Co) informed the court of the Applicant’s intention to amend the Form 86, with a draft Amended Form 86 being enclosed with their letter.  On 18 December 2018, the court directed that the question of amendment was to be dealt with at the rolled-up hearing.  In the draft Amended Form 86, the Applicant seeks to challenge also the Director’s alleged policy or practice of removing persons from Hong Kong without adequate notice to allow them access to justice.

12.On 4 January 2019, the rolled-up hearing was fixed to take place on 27 June 2019.

13.On 25 January 2019, the Applicant took out the present summons seeking an earlier hearing date of the rolled-up hearing.  The basis of the application is that the Applicant is now allegedly hiding in Sri Lanka, moving from place to place to avoid detection by her husband and remains in constant fear of violence and her life.  It is said that the Applicant has been diagnosed with stage 3 cervical cancer, but she has no money to seek private medical care, and dare not apply for a Sri Lankan Identity Card required to obtain public medical care because in order to register for one, she must first obtain a RPD Form 1 from the local village officer or a public official which would expose her to a risk of detection by her husband.  It is also said that the Applicant is suffering from some psychological disorder.

14.On 12 February 2019, the court directed the parties to provide their counsel’s available dates for a 1-day hearing during the period from 1 April 2019 to 27 June 2019.  It would appear from the information provided by the parties that the commonly available dates include 20 to 31 May 2019 and 19 to 27 June 2019.  Some additional dates in April and early to mid-May have also been proposed by the Applicant.

15.The Director submits that there are no justifiable reasons to support the Applicant’s allegation that her case is so urgent that it should take priority over the court’s other business, pointing out that the rolled-up hearing was fixed on 4 January 2019 in accordance with the diaries of the court and counsel of both parties, prior to which no application had been made by the Applicant that these proceedings be expedited or be dealt with on an urgent basis.  Also, as pointed out by the Director, the fact that a rolled-up hearing has been directed means, effectively, that the hearing has been expedited in that the Applicant does not have to go through the 2-stage process, ie the leave stage and the substantive hearing stage.  Accordingly, the Director submits that the court should not exercise its case management powers to bring forward the date of the rolled-up hearing.  Nevertheless, if it is considered just and appropriate from a case management perspective that the rolled-up hearing should be brought forward, the Director does not object to an earlier hearing date in accordance with the court and counsel’s diaries of both parties, but opposes the Applicant’s proposed direction that in the event that a suitably early date in accordance with the court and counsel’s diaries is not available, then the rolled-up hearing be re-fixed in accordance with the court’s diary and that of counsel for the Applicant only.

16.In my view, the Applicant’s suggestion that the hearing date should be fixed in accordance with the diary of counsel for the Applicant, but not the Director, lacks any reasonable justification and is inappropriate.  If the matter is so urgent as alleged by the Applicant, she should ask the court to fix the rolled-up hearing on the court’s earliest available date.

17.Notwithstanding some reservation on my part as to whether, even assuming that the Director acted unlawfully in removing her from Hong Kong on 18 May 2018 without sufficient notice (which is an issue to be considered at the rolled-up hearing), the court would exercise its discretion to grant the relief sought by the Applicant (namely, that the Director shall use his best endeavours to facilitate the Applicant’s return to Hong Kong to enable her to prepare and bring separate judicial review proceedings in respect of the Appeal Decision and for the Applicant to remain in Hong Kong pending the outcome of the same) in view of the fact that her non-refoulement claim has in fact been rejected by both the Director and the Torture Claims Appeal Board (which decisions would stand unless and until they are overturned in the Applicant’s other application for judicial review), I accept Mr Parker’s submission that this is likewise a matter to be dealt with at the rolled-up hearing.

18.In all the circumstances, I would exercise my discretion to bring forward the rolled-up hearing.  I take into account the fact that the Director has not yet filed evidence in this matter.  Ms Cheung informed the court that the Director would need 28 days to prepare his evidence.  Some allowance must also be given to the Applicant to file evidence in reply (if so advised).  Taking all these into account, I would re-fix the rolled-up hearing to take place on 22 May 2019 at 10:00 am.

Mr Timothy Parker, instructed by Messrs. Vidler & Co., for the applicant

Ms Jenny Cheung, GC of Department of Justice, for the putative respondent