Ali Sajid v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 1469/2018

[2020] HKCFI 1179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1469 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 national of Pakistan who in 2011 raised a torture claim with the Immigration Department while serving a sentence in prison for the offence of undertaking unauthorized employment after having earlier entered Hong Kong illegally, and for which he was required to complete and return his Torture Claim Form  (“TCF”), but despite being repeatedly given further time, the Applicant still failed to do so,  and so by a written notice dated 6 April 2013 the immigration officer informed the Applicant that his torture claim had been treated as withdrawn.

2.On 3 June 2013, the Applicant in writing requested to re-open his torture claim.

3.By a letter dated 17 July 2013, the Applicant was required to provide sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond his control that he had not been able to return a completed TCF.

4.By a letter dated 18 July 2013, the Applicant provided certain information to the immigration officer.

5.By a letter dated 12 November 2013, the Applicant was informed by the immigration officer that it was not satisfied that he had provided sufficient evidence to show that he had not been able to return the completed TCF as required due to circumstances beyond his control, and that his request to re-open his torture claim was refused.

6.Despite being advised of his right to make an appeal to the Torture Claims Appeal Board (“the Board”) against that decision, the Applicant never did so.

7.Meanwhile on 2 August 2013 the Applicant submitted a written signification stating his intention to lodge a claim for non-refoulement protection under risk of Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”).

8.On 10 February 2014 the Applicant was informed of the implementation of the Unified Screening Mechanism (“USM”) which applies to non-refoulement claims of which his claim would be taken as one, but shortly thereafter the Director of Immigration (“the Director”) was informed that the Applicant had failed to report to the Immigration Department and had since absconded from his recognizance.

9.On 26 February 2016 the Applicant by a letter informed the Director that he intended to withdraw his non-refoulement claim, stating that “my problem is solved and my life is safe”.

10.By a letter dated 29 February 2016, the Director informed the Applicant that his non-refoulement had been accepted as withdrawn and that no further action would be taken in respect of his claim.

11.On 5 December 2017 the Applicant in writing requested to re-open his non-refoulement claim.

12.By a letter dated 7 December 2017, the Applicant was required by an immigration officer to provide further information and evidence in writing on or before 21 December 2017 of:

(a)  detailed reasons of the withdrawal of his non-refoulement claim on 26 February 2016 and evidence that there has been a change of circumstances that could not reasonably have been foreseen by him when he gave the withdrawal notification on 26 February 2016 and that when together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

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

13.On 14 December 2017 the Applicant replied in writing that he made his decision to go back to Pakistan because he thought his problem was solved but he later came to know that his problem could not be solved, and hence his request to re-open his claim.

14.On 22 December 2017 the Applicant was required by the immigration officer to provide further information and evidence in writing on or before 5 January 2018 and with a reminder that if he failed to do so, his re-opening request would be assessed based on the available information and might be rejected.

15.On 29 December 2017 the Applicant replied in writing and stated that he withdrew his claim on 26 February 2016 because he was having reconciliation with his rival party Pakistan Muslim League (Q) (“PML(Q)”), that he was then in prison but when he had a conversation with his family in Pakistan, he came to know that the rival party did not want to reconcile, and so he applied to re-open his claim.

16.On 8 January 2018 the Applicant submitted another letter with further information as to his name, reference number and date of birth and with a plea for mercy and a further chance.

17.By a Notice of Decision dated 29 January 2018 the Director refused to re-open the Applicant’s non-refoulement claim as he was not satisfied that since the withdrawal of his non-refoulement claim on 26 February 2016 that there had been a change of circumstances that could not reasonably have been foreseen by him when he made his request to withdraw his claim.

18.In his decision the Director gave the following reasons for his refusal to re-open the claim:

“ 13. … Your letter of 29 December 2017 explained that you applied to return on 26 February 2016 because you were having reconciliation with your rival party. It is hard to comprehend that as you stated your problem was solved and your life was safe in your withdrawn letter dated 26 February 2016. If you genuinely feared of being seriously harmed in Pakistan, it is not unreasonable to expect that you would have checked and ensured the accuracy of the information regarding the reconciliation before you informed this department in writing that your problem was solved on 26 February 2016. It is thus not accepted that you have provided information indicating any change of circumstances that could not have been reasonably foreseen by you when you gave the notification to withdraw your claim. It is not satisfied that the information, when taken together with the material previously submitted for your claim, could increase the prospect of success of your claim.

14. Since you lodged your torture claim on 17 June 2011, you were given ample opportunity and time to submit your TCF but you failed to return the TCF within the time frame. You later requested to re-open your torture claim but your request was refused on 12 November 2013. You were advised of your right to make an appeal but you did not submit any appeal application afterwards. If you consider you are genuinely in fear of being harmed or killed in Pakistan, you should have taken the opportunity to submit your claim in detail at the beginning or make an appeal towards the refusal of your re-opening request. Your behavior is not consistent with a person who is genuinely in fear of being harmed who wishes to seek immediate protection.

15. Having carefully considered all the circumstances of your case, it is not satisfied that there are any special circumstances in your case which would make it unjust not to re-open your non-refoulement claim.”

19.On 5 February 2018 the Applicant lodged an appeal to the Board against the Director’s decision, of which the Board did not conduct any oral hearing and dealt with the Applicant’s appeal in his absence and on papers, and on 12 July 2018 it agreed with the Director’s decision and dismissed the appeal. 

20.On 26 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he would be killed by his opponents upon his return to Pakistan.

21.As it has been held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549 that the decision of the Director is not susceptible to judicial review once a non-refoulement claim has pursued an appeal to the Board, I propose to only focus on the decision of the Board in the Applicant’s application for leave to apply for judicial review. 

22.Notwithstanding the lack of proper ground being put forward for his intended challenge of the Board’s decision, given the serious implications of the decision on the Applicant, high standards of fairness require that the reasons for the Board’s refusal to re-open his non-refoulement claim be considered by the court with rigorous examination and anxious scrutiny, of which I shall start by first referring to the relevant section 37ZE of the Immigration Ordinance, Cap 115 (“the Ordinance”) regarding the re-opening of a torture claim:

“ (1) A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2) 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.

(3) If an immigration officer decides to re-open a person’s torture claim under subsection (2), the immigration officer must, by written notice, inform the person of the decision.

(4) If an immigration officer decides not to re-open the person’s torture claim, the immigration officer must, by written notice, inform the person of -

(a) the decision;

(b) the reasons for the decision; and

(c) the person’s right under section 37ZR to appeal against the decision.”

23.Although such statutory provision is applicable only to torture claim, the same constraints also apply under the current USM regime in respect of other non-refoulement claims: Ram Chander v Director of Immigration [2018] HKCA 585.

24.In agreeing with the Director’s refusal to re-open the Applicant’s non-refoulement claim, the Board stated in its decision as follows:

“ 22. Having carefully considered all the relevant materials (including the events and communications between the Department and the Petitioner and copies of their communications and the Appeal Notice) and issues in this petition, the Adjudicator declines to allow the Petitioner to re-open his non-refoulement claim.

23. The Adjudicator agrees with the decision made by the Director and his grounds for making his decision as stated in paragraph 18 above.”

25.It seems to me that other than agreeing with the Director’s reasons for his refusal to re-open the Applicant’s non-refoulement claim, the adjudicator did not make any finding of his own regarding the Applicant’s appeal/petition, but preceding his decision he cited in [20] Section 37Y(2) of the Ordinance which does not appear to me relevant to the Applicant’s appeal/petition as it refers to refusal to re-open a claim if the person who made a torture claim fails to provide sufficient evidence to satisfy an immigration officer that due to circumstances beyond the person’s control that he had not been able to return a completed torture claim form as required under the Section.

26.While it is true that the Applicant did earlier fail to do exactly that regarding his torture claim in 2011, the section relevant to the Director’s refusal to re-open his non-refoulement claim under USM and upon which was relied for his decision was Section 37ZE referred to above.  As such it seems to me reasonably arguable that the adjudicator relied on the wrong statutory provision in his decision to refuse the re‑opening of the Applicant’s non-refoulement claim.

27.More significantly, it seems to me also reasonably arguable that the finding by the Director that the Applicant should “have checked and ensured the accuracy of the information regarding the reconciliation”before he was to inform the Immigration Department that his problem had been solved on 26 February 2016, when he was in fact then being imprisoned for 16 months, and upon his release he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) (see [9] of Director’s decision), and that it was a change of circumstances that he should have reasonably foreseen when he gave the notification to withdraw his claim is flawed, and with which the Board should not have agreed.

28.In Nawaz v Torture Claims Appeal Board [2019] HKCA 417, where the applicant’s request to re-open his torture claim was refused when it was found by both the Director and the Board that the retraction of compromise by his enemy was foreseeable at the time of his request to withdraw his claim, in holding that such finding was flawed and in allowing his appeal, Hon Lam VP stated:

“ 22. Having reviewed the materials before us, we considered it is reasonably arguable that the finding that the retraction of compromise by the applicant’s enemy was foreseeable by the applicant at the time of requesting the withdrawal of his torture claim is so obviously flawed that it is a finding that no reasonably tribunal could have made …

23.  With respect, we cannot find any evidential basis for the Board to make the finding that the retraction from an agreed settlement could have been foreseen by the applicant in mid-2011 when he withdrew his claim.  Nor can we accept the judge’s reasoning …”

29.In paragraph 29 His Lordship went on to state:

“ By reason of the serious flaw in the Board’s treatment of settlement, it is reasonably arguable that the Board had not properly addressed if there had been a material change of circumstances in the context of Section 37ZE.”

30.In the premises, it is reasonably arguable in the Applicant’s case that the Board had not properly addressed how he would have been able to check and ensure the accuracy of the information regarding the reconciliation while in prison or being detained at CIC before withdrawing his claim and/or whether there had been a material change of circumstances within the context of Section 37ZE of the Ordinance.

31.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s Decision based on the grounds set out above, and direct that he shall file his originating summons within 14 days from his receipt of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 17^th day of June 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