Shahzad Muhammad Aqeel v. Secretary for Security and Another

HCAL 629/2018

[2021] HKCFI 3240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 629 OF 2018

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Before: Hon Coleman J in Chambers (Open to Public)

Date of Hearing: 22 October 2021

Date of Decision: 22 October 2021

Date of Reasons for Decision: 1 November 2021

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R E A S O N S   F O R

D E C I S I O N

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A. Introduction

1.The Government has been providing publicly-funded legal assistance to non-refoulement claimants since 2009 via a scheme administered by the Duty Lawyer Service (“DLS Scheme”).  From 2017, the Government started to run a parallel scheme alongside the DLS Scheme to provide such legal assistance, known as the Pilot Scheme.  Claimants are randomly assigned into either scheme.  The two schemes have set up their own rosters of lawyers.

2.The Applicant is a Pakistani national seeking non-refoulement protection in Hong Kong.  The Applicant was assigned to the Pilot Scheme, but he wished to be transferred to the DLS Scheme since he wanted to nominate lawyers on the roster of the DLS Scheme.  His request was initially rejected.  The Applicant also failed to return a completed Non-refoulement Claim Form (“NCF”) within time, leading to the 2^nd Putative Respondent’s decision to treat his non-refoulement claim as “withdrawn” on 23 March 2018.

3.The Applicant filed a Form 86 on 12 April 2018 to seek leave to apply for judicial review against decisions of both the 1^st Putative Respondent (“Secretary”) and the 2^nd Putative Respondent (“Director”), namely: (1) the Secretary’s decision to implement the Pilot Scheme, (2) the Secretary’s decision refusing to transfer the applicant from the Pilot Scheme to the DLS Scheme, and (3) the Director’s decision to treat the Applicant’s non-refoulement claim as withdrawn.

4.The Applicant acted in person.  On 19 January 2021, Chow J (as he then was) gave directions for the Secretary and the Director to file and serve an initial response, and they did so on 10 May 2021. Leave was also given for the Applicant to file and serve a reply, but he did not file any.  On 24 August 2021, the Court fixed an oral hearing for the leave application for 22 October 2021.  The Secretary and the Director filed their respective skeleton submissions and bundle of authorities on 18 October 2021.

5.However, the Applicant filed no further materials and was absent from the oral hearing.  Counsel acting for the Secretary and Director confirmed that they had duly served all their papers on the Applicant before the hearing.  In the circumstances, I decided that the hearing should proceed in the Applicant’s absence.

6.At the hearing, I dismissed the application for leave to apply for judicial review, with reasons to follow later.  These are the reasons.

B.     Background Facts

7.The Applicant lodged his non-refoulement claim in 2015.  On 22 December 2017, he attended a briefing session organized by the Immigration Department.  He was given a blank NCF and signed an acknowledge of receipt to declare that he understood that he had to return the completed NCF within 28 days from a written request being issued to him or any further period as extended by the Director.  The Applicant also indicated that he would like to seek publicly-funded legal assistance.  His case was then referred to the Pilot Scheme Office (“PSO”) of the Security Bureau (“SB”), which runs the Pilot Scheme.  A previous drawing exercise had determined that the Applicant would been assigned into the Pilot Scheme if he should seek such assistance.

8.On 4 January 2018, the Applicant attended the initial conference in the presence of his lawyer, assigned to him under the Pilot Scheme.  In the conference, the Applicant made a written request that he wished to nominate two lawyers on the DLS Scheme roster.  At that time, there was no protocol to enable a claimant in one scheme to nominate lawyers in the other scheme.  PSO rejected the Applicant’s request and explained that he would be regarded as not requiring publicly-funded legal assistance if he refused to accept the lawyer provided to him under the Pilot Scheme.

9.On 8 January 2018, the Applicant made a written request to be transferred from the Pilot Scheme to the DLS Scheme, which was rejected by the Director on 12 January 2018.

10.The Applicant did not return his completed NCF within time, despite the fact that the Director extended the deadline several times.  By letters from the Director to the Applicant dated 31 January, 13 February and 8 March 2018, the Applicant was repeatedly reminded that his claim would be treated as withdrawn unless he returned the completed NCF within time.  In those letters, the Applicant was also reminded that interpretation service and legal representation under the Pilot Scheme could be provided to him if he so wished.

11.The deadline for submitting the completed NCF was last extended to 22 March 2018.  By letter dated 23 March 2018, the Director informed the Applicant that his claim was treated as withdrawn.

12.It should also be mentioned the Applicant submitted a signed but blank NCF, with supplementary sheets written in Urdu on 23 March 2018. The Director did not take this as submitting a duly completed NCF within time.

13.In April 2018, the Applicant requested the Director to re-open his non-refoulement claim, which was rejected.  This decision was appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”), which affirmed the Director’s decision.

14.In October 2018, the Applicant requested to re-open his claim.  The Director treated the request as a subsequent claim and proceeded with it accordingly.  By then, the protocol for the Pilot Scheme had been amended such that a claimant assigned to the Pilot Scheme could nominate a lawyer on DLS Scheme roster if there was a pre-existing lawyer-client relationship on an immigration matter.  Also, the Applicant’s preferred lawyer had already acted for him in relation to his non-refoulement claim on a pro bono basis by that point.  Therefore, his request to be transferred from the Pilot Scheme to the DLS Scheme was acceded to.  His subsequent claim (which is not the subject of the current leave application) has been processed with the benefit of legal representation by a lawyer from the DLS Scheme.

C.     Grounds of review

15.No grounds of reviews are provided in the Form 86. In his affirmation dated 12 April 2018, he said that:

“I want to challenge the legality of the Government’s implementation of the Pilot Scheme on provision of publicly-funded legal assistance to non-refoulment claimants under the Unified Screening Mechanism. I want to challenge the refusal of the Pilot Scheme Office in transferring my case to the Duty Lawyer Service. I want to challenge the decision made by the Director of Immigration on the 23 March 2018 who consider my claim as deemed withdrawn despite I filed my non refoulement claim form.

I am in the process to retain a lawyer who can assist me in this intended proceedings. I would be grateful if the High Court can hold off until I retain a lawyer.

The Pilot Scheme fails to satisfy high standards of fairness by reason of apparent institutional bias and/or failure to provide effective legal assistance.”

D.     Is there merit for the grant of leave?

D.1    The decision to implement the Pilot Scheme

16.The best one can make out by reading the Applicant’s Form 86 and his affirmation is that he contended that the Pilot Scheme is illegal because it has apparent institutional bias and that it fails to provide effective legal assistance to claimants.  No particulars or evidence are provided to explain or to substantiate why there is apparent institutional bias in the Pilot Scheme or why it fails to provide effective legal assistance.

17.Order 53 rule 3(2) provides that an applicant for leave to judicial review has to set out his grounds of review in the Form 86.  Order 53 rule 6(1) provides that no grounds shall be relied upon at the hearing except the grounds set out in the Form 86. If an applicant is unable clearly to set out his grounds of review in the Form 86, the putative respondent should not be called upon to speculate what the applicant’s case might be, still less to answer such “case”.  Further, simply because an applicant acts in person does not mean that the putative respondent should be made to box in the dark and to fend for itself against accusations not intelligibly articulated.  This on its ownis sufficient to dismiss this ground.

18.In any event, the Secretary offered assistance to the Court in respect of the apparent institutional bias argument, assuming that the Applicant’s complaint is that the PSO (being part of the SB which is the Bureau in charge of immigration matters) is assuming the role of a judge in its own cause.  The Secretary explained that there is functional segregation within the SB in that the PSO is placed under the purview of the Deputy Secretary for Security whose work does not concern immigration policies.  There is also physical segregation in that the PSO and immigration policy related divisions are housed in different locations.  The Secretary also explained that the eligibility criteria for lawyers to be enrolled onto the rosters of both schemes are the same and the scope of service provided by them are also the same, such that there is no basis to suggest that the Pilot Scheme fails to provide effective legal assistance.  There is no reason before the Court to reject such arguments.

19.In short, there is no merit in the proposed ground.

D.2    The decision refusing to transfer the Applicant from Pilot Scheme to DLS Scheme

20.In the Applicant’s letter dated 8 January 2018requesting the transfer, the reason he provided is that he “found the [Pilot Scheme] prejudicial to his case”, with no further explanation.  Given that, in effect, no reason was provided to justify the Applicant’s request, the PSO was plainly entitled to reject the request on 12 January 2018 and insist that the Applicant should adhere to the then prevailing arrangement for offering publicly-funded legal assistance.

21.As it now stands, it is still unclear why the Applicant contended that it was wrong in the public law sense for PSO to refuse to transfer his case.  If the complaint relates to the Pilot Scheme in general, I have already dealt with that above and I shall not repeat it here.  If the complaint is specific to his case, he provided no elaboration to the PSO (nor this Court) as to why his case should warrant a departure from the then prevailing arrangement in offering publicly-funded legal assistance.

22.As submitted by the Secretary, this matter has in any event been rendered academic in the sense that the underlying factual basis is no longer extant.  The Applicant had been transferred to the DLS Scheme in his subsequent claim, after the protocol for the pilot Scheme was revised in June 2018.  There is no good reason in the public interest now to examine this case: see Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, at §20.  Future applications to transfer from one scheme to another raised by other claimants should be considered on their own merits.

23.I agree.  There is no merit in this proposed ground.

D.3    The decision to treat the Applicant’s non-refoulement claim as withdrawn

24.This can be disposed of quickly.  The Applicant was given ample time to complete his NCF.  Interpretation service and legal assistance were also offered in filling in the form.  Yet, he failed to submit a completed NCF despite several extensions of the deadline up to 22 March 2018. His claim was treated as withdrawn pursuant to section 37ZG(1) and section 37Y(2) of the Immigration Ordinance Cap 115.

25.In any event, whilst the Director refused to re-open the Applicant’s claim, his further claim has been treated as a subsequent claim and has been proceeded with accordingly.  So, there is also no utility in reviewing this decision.

26.There is no merit in this ground.

E.     Conclusion

27.For the above reasons, the Applicant’s leave application was therefore dismissed.

F.     Costs

28.At the conclusion of the hearing, I also ordered the Applicant to pay the costs of both the Secretary and the Director, to be taxed by way of summary assessment.  In short, the oral hearing was fixed for the Applicant’s benefit, but he failed to appear.  Nor did he indicate that he no longer wished to pursue the application, whether before or after receipt of the initial responses, or when the hearing was fixed.  Further, the Court was assisted by the submissions made by the Secretary and the Director.

29.I directed that (1) the Secretary and Director shall file and serve a schedule of costs by 5pm on 5 November 2021, and (2) the Applicant shall file and serve his response, if any, by 5pm on 19 November 2021. Thereafter, costs shall be summarily assessed by me on paper.

The applicant was not represented and did not appear

Ms Denise Souza, instructed by the Department of Justice, for the 1^st putative respondent

Ms Jenny Cheung, Senior Government Counsel (Ag), of Department of Justice, for the 2^nd putative respondent