Motiur Mohammed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 93/2018

[2020] HKCFI 97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 93 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 55-year-old national of Bangladesh who last arrived in Hong Kong in 2003 as a visitor when he overstayed and subsequently married a local resident and made a Right of Abode application, and when that application was refused by the Immigration Department, he then raised a torture claim under Part VIIC of the Immigration Ordinance, Cap 115 on the basis that if he returned to Bangladesh he would be harmed or killed by his creditors over his debts and/or by his parents for marrying a non-Muslim wife in Hong Kong.  

2.While his torture claim was being determined, on 8 March 2013 the Applicant through his lawyer submitted a written request to the Immigration Department for non-refoulement protection under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3”).

3.On 24 April 2013 the Applicant’s torture claim was rejected by the Director of Immigration (“the Director”), and as a result a deportation order was issued against him, and of which he then applied to the Director for its suspension pending the determination of his non-refoulement claim.

4.In June 2015 the Applicant was informed by the Immigration Department that as his non-refoulement claim had not yet been determined, the Security Bureau would not be able to deal with his application for suspension of the deportation order. 

5.By a letter dated 7 July 2015 from his lawyer to the Director, the Applicant requested to withdraw his non-refoulement claim so that the Security Bureau could deal with his application for the suspension of the deportation order.

6.On 6 July 2015 the Director informed the Applicant that no further action would be taken of his non-refoulement claim upon the withdrawal of his claim.

7.By a letter dated 2 August 2016 but received by the Immigration Department one year later on 2 August 2017, the Applicant applied for non-refoulement protection under Article 2 of the Hong Kong Bill of Rights (“BOR 2”).

8.On 11 August 2017 the Applicant was informed by the Director that his request would be taken as one for re-opening his non-refoulement claim other than his already rejected torture risk, and that he was requested to provide the following information and evidence in writing pursuant to section 37ZE of the Immigration Ordinance, Cap 115:

(a) detailed reasons of the withdrawal of his non-refoulement claim and evidence that there has been a change of circumstances which could not reasonably have been foreseen by him when he gave the withdrawal notification on 30 June 2015 and which when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim.  

9.By a letter dated 29 August 2017, the Applicant through his lawyer gave the following reasons for the withdrawal of his claim:

(a) In June 2015, as his non-refoulement claim was pending for assessment, the Applicant was informed that the Security Bureau would not be able to deal with his application for the suspension of the deportation order.

(b) In order to have the Security Bureau proceed with his application, the Applicant withdrew his non-refoulement claim on 30 June 2015, and informed the Security Bureau of the same on 7 July 2015.

(c) On 7 October 2016 the Applicant was informed by the Security Bureau that his application for suspension of the deportation order was rejected.

(d) On 11 January 2017 the Applicant requested the Security Bureau to re-consider his application for suspension of the deportation order.

(e) On 22 June 2017 the Applicant was informed by the Security Bureau that his request for reconsideration of its decision was rejected.

(f) As the Applicant considered that he was being asked by the Immigration Department to withdraw his non-refoulement claim so that his application for suspension of the deportation order could be determined by the Security Bureau, and when that was rejected, it should be considered as a change of circumstances that could not reasonably have been foreseen by him when he gave the notification of his withdrawal,and hence he was entitled to re-open his non-refoulement claim.

10.By a Notice of Decision dated 6 September 2017, the Director refused to re-open the Applicant’s non-refoulement claim for the following reasons:

(a) that the Applicant’s application for the Security Bureau to suspend the deportation order had no connection with the Director’s assessment of his non-refoulement claim;

(b) that there was no evidence that the Applicant was ever asked by the Immigration Department to withdraw his non-refoulement claim so as to facilitate his application with the Security Bureau;

(c) that there was no compelling reason for the Applicant to have any expectation that his application with the Security Bureau must be successful, and hence the rejection of his application by the Security Bureau cannot be accepted as a change of circumstances which could not reasonably have been foreseen by him when he withdrew his non-refoulement claim;

(d) that there was no evidence such change of circumstances when taken together with the materials previously submitted for his claim could increase the prospect of success of his claim, and that there was no reason of special circumstances that it would be unjust not to re-open the claim.

11.On 19 September 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which the Board did not schedule any oral hearing for his appeal, and proceeded to deal with the matter on papers and in his absence.  On 7 December 2017 his appeal was dismissed by the Board.

12.In its decision the Board found that it was the Applicant’s own decision on legal advice to withdraw his non-refoulement claim in order to have his application to suspend the deportation order processed by the Security Bureau, that there had not been any change of circumstances that he could not have foreseen such as the possible refusal of his application for suspension of the deportation, or if it could be said to be a change of circumstances there was no evidence to suggest that it could increase his prospect of successin his claim, and that his grounds of appeal was not concerned with BOR 2 risk, and therefore dismissed his appeal.

13.On 18 January 2018 the Applicant filed his Form 86, without legal representation, for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely exhibited a copy of the Board’s decision.  Nevertheless, due to the seriousness of the issues at hand, the Court will adopt an enhanced standard in scrutinizing the Board’s decision in refusing to re-open the Applicant’s non-refoulement claim.

14.In considering a request to re-open a torture claim, or as in the present case, a non-refoulement claim, section 37ZE(2) of the Ordinance provides as follows:

“ Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b)   by reason of special circumstances, it would be unjust not to re-open the claim.”

15.In the Applicant’s case, whilst the Board did find, and correctly in my view,that the refusal of the Applicant’s application with the Security Bureau for suspension of his deportation order was not a change of circumstances that he could not reasonably have foreseen, nor could it increase the prospect of success of his claim on the basis relied by him, it seems to me that the Board did not proceed to consider, or consider properly, the alternative ground under section 37ZE(2)(b) that in the particular circumstances and reason of the Applicant’s withdrawal of his non-refoulement claim, whether it would be unjust not to re-open his claim.

16.It is clear from its decision that the Board was well aware of the fact that having made an application for the suspension of his deportation order pending the determination of his non-refoulement claim under the first tier of the then newly implemented screening process under Unified Screening Mechanism (“USM”), the Applicant was informed by the Immigration Department that the Security Bureau was unable to process his application for the suspension of his deportation order, which led to the Applicant’s decision to withdraw his non-refoulement claim so as to enable the Security Bureau to deal with his application,and under these circumstances it would be safe in my view to expect the Director to know,or ought to have known, that upon the Security Bureau having dealt with his application,regardless of the outcome, that the Applicant would resume his BOR 3 claim before the Immigration Department, which was clearly the whole foundation for his claim for non-refoulement protection.

17.It is therefore in my view reasonably arguable that the Board should have found thatby reason of these circumstances that it would be unjust not to re-open the Applicant’s claim,or that it was Wednesbury unreasonable in its decision not to allow to re-open his claim.

18.In the premises and for these reasons, I am of the view that the intended application for judicial review of the Board’s decision is reasonably arguable, having met the threshold forleave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

19.Accordingly,I grant leave to the Applicant to apply for judicial review of the Board’sdecision based on the grounds stated above, and directed that he shall file an originating summons within 14 days of his receipt of this decision, and to serve a copy with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 7^th day of January 2020.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1