R v. Director of Immigration and Another
Read the full judgment text of HCAL 152/2017 on BabelCite. This High Court CFI judgment was delivered on 22 June 2020.
1. This is an application for leave to apply for judicial review of “Decision (1)” identified in the Amended Form 86, namely, an alleged “policy or practice by which ‘pre-screening’ is applied to non-refoulement claims and accepted into the Unified Screening Mechanism (‘ USM ’)” (“ the Alleged Pre-Screening Policy ”).
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HCAL 152/2017 [2020] HKCFI 1308 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 152 OF 2017 ________________________
________________________ Before: Hon Chow J in Court Date of Hearing: 16 June 2020 Date of Decision: 22 June 2020 ___________________ D E C I S I O N ___________________ INTRODUCTION 1.This is an application for leave to apply for judicial review of “Decision (1)” identified in the Amended Form 86, namely, an alleged “policy or practice by which ‘pre-screening’ is applied to non-refoulement claims and accepted into the Unified Screening Mechanism (‘USM’)” (“the Alleged Pre-Screening Policy”). BACKGROUND FACTS 2.The Applicant is a Nepali national who entered Hong Kong illegally by boat from the Mainland on 14 August 2016. He was referred to the Immigration Department on 18 August 2016 and thereafter detained until he was released on recognizance on 19 January 2017. 3.Whilst in detention, the Applicant made a total of 11 written significations of a non-refoulement claim between 19 August 2016 and 17 January 2017. In relation to the 1st to 10th significations, the Immigration Department did not consider that the Applicant had given a general indication of the reasons for claiming non-refoulement protection in Hong Kong, and thus the Applicant was considered not to have made a non-refoulement claim. Accordingly, the USM was not invoked to assess the Applicant’s claim. 4.In relation to the 11th signification made by Daly, Ho & Associates on behalf of the Applicant, the Immigration Department considered that the Applicant had given a general indication of the reasons for claiming non-refoulement protection in Hong Kong, and thus the USM was invoked to assess his claim. 5.On 20 April 2017, the Applicant made an application for leave to apply for judicial review by filing a Form 86. On 19 October 2017, Au J (as he then was) granted the Applicant leave to amend the Form 86. 6.By the Amended Form 86, the Applicant seeks to challenge the following “decisions”:
7.By a letter dated 17 January 2018 from the Department of Justice to Daly, Ho & Associates, the Director informed the Applicant that he was prepared to accept that:
were not lawful in all the circumstances. The Director also offered to pay compensation for the Applicant’s detention for the period from 19 August 2016 to 19 January 2017. The Director did not, however, accept the Applicant’s allegation of physical mistreatment during the 3 attempted removals. 8.On 28 November 2019, the court granted the Applicant leave to apply for judicial review in respect of Decisions (2), (3) and (4) referred to in paragraph §6 above, with an extension of time for the Applicant to apply for leave to apply for judicial review in respect of those decisions. 9.On 9 December 2019, the court made the following orders by consent:
10.Accordingly, the only remaining issue to be dealt with in the present application for judicial review concerns the Applicant’s challenge to the Alleged Pre-Screening Policy, which is advanced by Mr Parker on behalf of the Applicant as a systemic challenge. THE REQUIREMENT OF A SIGNIFICATION TO INVOKE THE SCREENING PROCESS 11.A person wishing to make a non-refoulement claim must first make a signification to that effect. 12.In so far as a “torture” claim (ie a claim for non-refoulement protection in Hong Kong on the ground of a torture risk under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 as applied to Hong Kong) is concerned, the position is governed by Section 37X of the Immigration Ordinance, Cap 115 (“the Ordinance”), which provides, so far as relevant, as follows:
13.The statutory screening mechanism for dealing with torture claims under Part VIIC of the Ordinance has been adapted by the Government to become what is known as the Unified Screening Mechanism for the purpose of screening non-refoulement claims based on all applicable grounds, including (i) torture claims under the Ordinance, (ii) violation of absolute and non-derogable rights under the Hong Kong Bill of Rights, (iii) persecution with reference to the non-refoulement principle under Article 33 of the 1951 Refugee Convention. The purpose of the USM is to ensure that non-refoulement claims by a person on all applicable grounds are processed in parallel under both statutory and administrative systems with the same procedures having regard to the high standard of fairness required to be observed in relation to the screening process. 14.As with the making of a torture claim under the Ordinance, a person seeking non-refoulement protection under other grounds must make a written signification before the USM is invoked. The need for a relevant signification is set out in a document entitled “Notice to Persons Making a Non-refoulement Claim” (September 2017 version) (“the Notice”):
15.In can be seen that under both the statutory screening mechanism under Part VIIC of the Ordinance and the administrative USM, a person must first make a written signification giving “a general indication of the person’s reasons for claiming non-refoulement protection in Hong Kong” before he is regarded as having made a non-refoulement claim, which will then set in train the screening process. Mr Parker has drawn the court’s attention to the fact that in the Notice, it is provided that the signification “may include reasons that relate to an act falling within the meaning of any applicable grounds”, but no such provision appears in Section 37X of the Ordinance. I do not see that the additional provision in the USM to be material for the purpose of the present case. 16.In the Affirmation of Cheung Ho-chi, Assistant Secretary of the Security Bureau, filed on 9 February 2018, Mr Cheung explains how, in practice, immigration officers determine whether a sufficient signification has been made by a person:
THE MERITS OF THE INTENDED CHALLENGE 17.The Applicant contends that the Alleged Pre-Screening Policy is ultra vires because it breaches obligations arising from:
18.The Secretary and Director dispute the existence of the Alleged Pre-Screening Policy, in the sense of a policy to “pre-screen” the merits or validity of a non-refoulement claim prior to it being assessed under the USM. There is nothing in the evidence before the court to suggest that any such policy has ever existed. To the extent that the Applicant alleges that the Secretary and/or Director have a policy under which they “refuse to recognize validly-made protection claims”[2], this allegation is plainly without any foundation. 19.Leaving aside for the moment the “pre-screening” label, the only policy which, on the evidence, exists is a policy relating to the determination of the initial question of whether a person has made a non-refoulement claim in order to invoke the USM. This policy is embodied in Section 37X of the Ordinance and the Notice referred to in §§12 and 14 above. There cannot, in my view, be any objection in principle to the existence of such policy. As pointed out in the Affirmation of Cheung Ho-chi, at §7, removees (or deportees) may object to being removed (or deported) from Hong Kong for a variety of reasons, many of which have nothing to do with non-refoulement protection. For example, they may claim that they enjoy the right of abode in Hong Kong, or wish to remain in Hong Kong to work, or wish to stay in Hong Kong with their family members, or wish to remain in Hong Kong for medical treatment, or that the economic situation of their home countries is bad and hence they will be living in poverty if they have to return to their home countries. Plainly, there must exist a process to determine the initial question of whether a claim for non-refoulement protection has been made before the USM is invoked to assess the claim. 20.The current policy requires a person wishing to make a non-refoulement claim to give a written signification giving a general indication of the person’s reasons for claiming non-refoulement protection in Hong Kong. I am unable to see how this requirement can in any way be said to be inconsistent with any of the protected rights referred to in §17 above. A similar requirement appears in the current UK Home Office Guideline entitled “Asylum screening and routing” (Version 5.0) published on 2 April 2020:
It is clear that in the UK, the emphasis is on the particularization of a claim before it is accepted that a claim for asylum protection has been made. 21.It transpires from Mr Parker’s submission that the Applicant’s complaint is not so much about the requirement on a claimant to give a general indication of his reasons for claiming non-refoulement protection in Hong Kong before he is treated as having made a relevant claim, but that the Director has adopted too “high a threshold” for recognizing non-refoulement claims. There are some references to the question of “threshold” in the Amended Form 86, eg at §§76 and 145.1. However, those references are made not as part of the grounds of review, but in support of the Applicant’s application for an extension of time to apply for leave to apply for judicial review, and his argument why the court should entertain the application even if it considers that the intended challenge has become academic (a matter which I shall consider later in this decision). In any event, assuming, for the sake of argument, that the Applicant has properly or sufficiently raised the complaint that the Director has adopted too high a threshold for recognizing non-refoulement claims in the Amended Form 86, the Applicant has failed to plead any sufficient basis to support the contention that, on a systemic level, the Director has adopted an incorrect threshold. All that has been pleaded in the Amended Form 86 is that the Applicant’s 10 significations made between 19 August 2016 and 5 January 2017 were not accepted by the Director as valid significations of a non-refoulement claim. It must now be accepted that the Director’s decisions not to accept them as valid significations were wrong. It may even be said that those decisions were plainly wrong. However, the fact that the Director has made wrong decisions cannot, in my view, prove that there is a systemic deficiency in the application of the Alleged Pre-Screening Policy. The Applicant has sought to rely upon, in addition to the rejection of his significations, 6 anonymized “case studies” through the Affidavit of Karen McClellan dated 3 January 2020 and the Affirmation of Issac Laban Shaffer dated 10 January 2020. I do not consider that the Applicant is entitled to rely on those matters because they were not raised in the Amended Form 86[3]. It would also be unfair to permit the Applicant to rely on those cases because the Secretary/Director are simply in no position to properly respond to them by reason of their anonymity. In any event, I do not consider that incorrect decisions in isolated or individual cases can prove a systemic deficiency, bearing in mind the huge number of non-refoulement claims raised and considered by the Director since the implementation of the USM in March 2014. According to the records kept by the Director, between March 2014 to the end of 2019, the Director received some 17,797 non-refoulement claims. 22.Mr Parker has referred the court to various passages in the Affirmation of Cheung Ho-chi which suggest that the Director has generally adopted a strict approach in relation to immigration matters. I am unable to see how this point advances the Applicant’s case. The Director’s stringent immigration policy, which has been formulated having regard to Hong Kong’s unique geographical, social and economic circumstances, is well recognized, and has long been accepted by the courts in this jurisdiction as lawful. 23.For the sake of completeness, I shall briefly state my views on the correct threshold that ought to be applied by the Director. Generally speaking, the Director ought to adopt an “appropriately liberal view” when deciding whether a valid signification of a non-refoulement claim has been made, and should “proactively look for language” which may reasonably be interpreted as making a non-refoulement claim (see FB v Director of Immigration [2009] HKLRD 346, at §81 per Saunders J). This having been said, the express requirement that a claimant must give a general indication of his reasons for claiming non-refoulement protection in Hong Kong cannot be overlooked or ignored. The burden on the claimant in this regard is not an onerous one. If he has a genuine claim, he should, in most cases, have no difficulty in giving a general indication of his reasons for claiming non-refoulement protection in Hong Kong. The duty of making a valid signification of a non-refoulement claim rests, ultimately, on the claimant himself. 24.In all, I do not consider that the Applicant’s intended systemic challenge to the Alleged Pre-Screening Policy is reasonably arguable, or has a realistic prospect of success. THE APPLICANT’S STANDING 25.In this and the next section, it is assumed that the Applicant’s challenge to the Alleged Pre-Screening Policy is a systemic challenge concerning the threshold adopted by the Director for recognizing non-refoulement claims. 26.The question of whether an applicant has sufficient interest in the matter to which an application for leave to apply for judicial review relates under Order 53, r 3(7) of the Rules of the High Court goes to the jurisdiction of the court to entertain the application (see Re Wong Chi Kin, CACV 80/2014 (26 September 2014), at §11). The question of what amounts to a “sufficient interest” for the purpose of seeking leave to apply for judicial review was considered by this court in Kwok Cheuk Kin v Commissioner of Police, HCAL 55/2017 (19 October 2017), at §§31-34. I do not propose to repeat the discussion here. 27.I do not consider the Applicant to have sufficient interest to challenge the Alleged Pre-Screening Policy for the following reasons:
THE CHALLENGE IN RESPECT OF DECISION (1) HAS BECOME ACADEMIC 28.At the time when the Applicant filed his Form 86, he challenged not only the Alleged Pre-Screening Policy (Decision (1)), but also the Director’s failure or refusal to recognize him as having espoused a non-refoulement claim since 19 August 2016 (Decision (2)), as well as the decisions to attempt to remove him from Hong Kong to Nepal (Decision (3)) and detain him (Decision (4)). There were also claims for damages flowing the Director’s non-recognition of a non-refoulement claim having been made by the Applicant. The question of whether the Director had adopted an unlawful pre-screening policy was, arguably, a relevant issue at that stage. 29.However, for the reasons mentioned in §27(2) above, the Applicant’s intended challenge to the Alleged Pre-Screening Policy has now become academic. 30.The court’s approach to the question of whether it should hear and determine an application for judicial review which is or has become academic is well settled, and can be found in the judgment of the Court of Appeal in Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, at §20 per Ma CJHC (as he then was), with whom the other members of the Court of Appeal agreed:
31.The present case falls within sub-paragraph (2) of the above quoted judgment in Chit Fai. In such a situation, the court has jurisdiction to determine an issue which has become academic, but such jurisdiction should be exercised with caution. The important consideration is whether it is in the public interest for the issue to be determined. A relevant, but by no means conclusive, consideration is whether the issue is likely or may well arise in future. Having regard to the view that I have taken concerning the lack of evidence that the Director has adopted, on a systemic level, an incorrect threshold for recognizing non-refoulement claims, this is clearly not an appropriate case for the court to entertain the intended challenge to the Alleged Pre-Screening Policy. A serious consideration of the issue should take place only where there is some sufficient or proper evidence to the effect that the Director has adopted, on a systemic level, an incorrect threshold as alleged. 32.The Applicant’s lack of sufficient interest in the matter is also a factor that argues against the court exercising its discretion to entertain an academic challenge (see Shek Lai San v Securities and Futures Commission, HCAL 115/2009 (30 April 2010), at §57). 33.In all, I am not prepared to exercise my discretion to entertain the application for judicial review of the Alleged Pre-Screening Policy, which has become an academic issue in so far as the Applicant is concerned. DISPOSITION 34.For all of the above reasons, the application for leave to apply for judicial review in respect of “Decision (1)” identified in the Amended Form 86 is dismissed. 35.On the question of costs, Mr Parker fairly accepts that, if the court should refuse to grant leave to apply for judicial review, the Applicant has to pay the costs of the Respondents. I make an order that the Applicant shall pay the costs of the Respondents after 28 November 2019, including the costs of the hearing on 16 June 2020, with certificate for 2 counsel, to be taxed if not agreed. 36.The Applicant’s own costs shall be taxed in accordance with legal aid regulations.
Mr Timothy Parker, instructed by Daly & Associates, for the Applicant Mr Johnny Mok, SC and Ms Grace Chow, instructed by Department of Justice, for the 1st and 2nd Respondents [1] See Amended Form 86, §109.1.1 to 109.1.4. [2] See Amended Form 86, §109.1. [3] See A v Secretary for Justice [2020] HKCFI 427, at §51. | |||||||||||||||||||||
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