Bangash Shmas Ur Rehman v. Director of Immigration

HCAL 1261/2022

[2023] HKCFI 582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1261 of 2022

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted; and

2.  The Applicant do issue the Originating Summons within 14 days from the

     date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A).

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 24 October 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been treated as withdrawn by the Director upon his failure to return a completed Non-refoulement Claim Form (“NCF”) to substantiate his claim and that his subsequent appeal/petition against such decision had also been dismissed by the Torture Claims Appeal Board (“the Board”).

Factual Backgrounds of the Applicant and Previous Non-Refoulement Claims

2.The Applicant is a 44-year-old national of Pakistan who first entered Hong Kong illegally sometime in 2007 and was arrested by police on 6 May 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by members of the political party Pakistan Tehrik-e-Istiqlal (“PTI”) over some anti-corruption case brought by him in the past when he was working for the government.

3.For the next 5 years the Applicant repeatedly requested to withdraw and re-open his claim, and eventually his torture claim was treated as withdrawn and on 24 August 2012 he was voluntarily repatriated to Pakistan.

4.Sometime thereafter the Applicant sneaked back into Hong Kong, and was arrested by police on 26 April 2013 for trafficking in dangerous drugs for which he was subsequently convicted and sentenced to prison for 4 months, during which he made a request to the Immigration Department to re-open his claim, and on 8 August 2013 the Director allowed him to do so as a subsequent claim under Section 37ZO (2) of the Immigration Ordinance, Cap 115.

5.Upon the commencement of the Unified Screening Mechanism (“USM”) for the screening of all non-refoulement claims, the Director on 10 February 2014 informed the Applicant that his subsequent claim would be assessed on all the applicable grounds under USM.

6.On 15 October 2015 the Applicant was required by the Director to return his completed NCF to substantiate his claim within 28 days under Section 37Y(2) of the Ordinance, and on the same day he was also granted legal representation from the Duty Lawyer Service (“DLS”).

7.On 22 December 2015 the Director informed the Applicant that due to his failure to return his completed NCF as required that his claim was deemed as having been withdrawn under Section 37ZG (1) of the Ordinance.

8.On 21 January 2016 the Applicant requested to re-open his claim, to which the Director subsequently agreed and extended the period for him to return his completed NCF to 17 February 2016.

9.On 9 March 2016 the Director informed the Applicant that as he still failed to return his completed NCF as required, his claim was again treated as having been withdrawn.

10.On 25 April 2016 the Applicant wrote to request to re-open his claim, offering explanations that he had all along been in detention by the Immigration Department.

11.On 27 April 2016 the Director required the Applicant to provide sufficient evidence in writing under Section 37ZG(3) of the Ordinance by 11 May 2016 that he had not been able to return his completed NCF as required due to circumstances beyond his control.

12.By 4 letters sent on separate occasions in May 2016, the Applicant put forward various explanations for his failure to return his NCF as required to the Director.

13.By a Notice of Decision dated 23 June 2016 the Director refused to allow the Applicant to re-open his subsequent claim upon finding that he had failed to provide sufficient evidence to show that it was due to circumstances beyond his control that he had not been able to return his completed NCF.

14.The Applicant then appealed to the Board against the Director’s decision, which was dealt with by the Board on paper without hearing, and on 5 January 2018 it was dismissed by the Board upon finding that he had failed to adduce sufficient evidence to show that there were circumstances beyond his control that led to his failure to return his completed NCF within the time as required, and that it also confirmed the Director’s decision to refuse the re-opening of his claim.

15.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 21 December 2018 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 179/2018 [2018] HKCFI 2815).

16.The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 8 June 2020 (CAMP 314/2019 [2020] HKCA 434).

17.The Applicant’s notice of motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 5 February 2021 ([2021] HKCA 144), and then by the Appeal Committee of the Court of Final Appeal on 11 November 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

18.Less than a week later on 17 November 2021 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that those PTI members are still looking for him in Pakistan and have also made false charges against him for which he had since been convicted in his absence and was given the death penalty that the authorities are also looking to arrest him, and hence he fears of being harmed or killed by both the PTI members and the Pakistani authorities if refouled to Pakistan, and that he also needs to remain in Hong Kong to look after his sick brother with kidney problems.

19.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

20.Accordingly, on 10 December 2021 the Director required the Applicant to provide further information and evidence in writing to an immigration officer in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”).

21.By a Notice of Decision dated 24 October 2022 (“Decision”) the Director refused to allow the Applicant to make a subsequent claim upon finding that the threats from PTI members were essentially the same as that of his previous claim and do not amount to a significant change of circumstances since his previous claim was withdrawn, that those documents submitted for his assertions of being pursued by the Pakistani police and authorities over the false charge brought against him with the death penalty even if true contained very limited information to support his such assertions and that similarly they do not amount to any significant change of circumstances since the withdrawn of his previous claim, nor is there any evidence that even if the false charge is real that a fair trial would not be available to him to defend it in a fair trial or that he would not be given any police protection or internal relocation to minimize or negate any threats from his asserted enemies, while any need to take care of his sick brother in Hong Kong even if true will not constitute any proper or valid basis for non-refoulement protection, or that any such change as asserted by him when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

22.On 15 November 2022 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s Decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he stated that his claim was not considered properly but without providing any details or particulars or elaboration as to how it was so, nor did he do so at the hearing of his application.

23.Nevertheless, given the seriousness of the issue at hand and the gravity of the decision made by an immigration officer to refuse the Applicant’s request to make a subsequent claim, of which there is no right to appeal to the Board under Section 37ZR of the Ordinance which was available for his previous claim as part of the 2-tiers screening process of all non-refoulement claims under USM, and hence high standards of fairness require that the reasons of the immigration officer in refusing his request to make a subsequent claim be scrutinized by the Court for any error of law or irrationality or procedural unfairness in the process or the Decision.

24.In considering the Applicant’s request to make a subsequent claim, the immigration officer first set out in details in [15] – [20] of the Decision all the information and evidence provided by the Applicant in support of his request as well as those earlier submitted for his previous claim, which can be seen as quite substantial consisting of almost 7 pages of information from pages 5 to 11 of the Decision.

25.The Director then proceeded to refuse the Applicant’s request for the following reasons in the Decision:

“20. All the available information/evidence provided have been carefully considered. In gist, you currently have the following sources of fear if you are returned to Pakistan:-

(a) You will be harmed or even killed by your enemies because they still hold grudges against you; and

(b) You will be arrested by the Pakistani police and face death penalty due to a false murder case against you.

21. For your fear mentioned at paragraph 20(a) above, you claimed that Azam told you your enemies still held grudges against you and they remained powerful and influential as before. However, this piece of information only amounts to assertions of fact not supported any credible evidence. Apart from Rehmat and Aftab as stated in your previous claim, you added the Chaudhry brothers as your enemies in your SC Request. Nevertheless, they belong to those suspects that you targeted in your past anti-corruption actions as depicted in your previous claim. Even if assuming that your enemies still associate with their political parties, i.e. PTI and PML(Q), there is no indication that they can mobilise the whole political parties to hunt and harm you countrywide. Besides, it is considered that your current fear still originates from your past anti-corruption actions against your enemies, which have already been mentioned in your submissions given in your previous claim (see paragraph 15 above). In addition, even though you are assisted by your legal representative in your Request, there is a lack of material evidence showing that your enemies are still looking for you or they have harassed any of your family members after you departed Pakistan in 2013. As such, your claimed fear does not amount to a significant change of circumstances since your previous claim was withdrawn.

22. Regarding your fear mentioned in paragraph 20(b) above, you claimed that the Pakistani police still came to the place where your mother and Azam live to look for you, showing a court document of arrest warrant against you, and alleging that you were responsible for a murder case for which you would face death penalty. The DLS on behalf of you provided Document 3, which appears to be a scrap paper, showing very limited information essentially “wanted suspect 87/88”, your name, your father’s name, and chop impression of “Judicial Magistrate 1^st Class”. Even if the content of Document 3 is taken to be true, it is noted that neither your alleged murder and corruption cases nor any action having been/would be taken against you were mentioned therein. Document 3 thus cannot provide any substance to support your claim. Besides, as it is noted that you have raised the same fear of being framed false cases in your previous claim, your further information is not considered a significant change of circumstances since your previous claim was withdrawn. Furthermore, even if it is accepted that there are false murder and corruption cases framed on you and the Pakistani police are indeed looking for you, there is no evidence adduced by you supporting that necessary state protection and a fair trial is not available in Pakistan. Besides, there is insufficient evidence that you have been and will be an adverse target of the Pakistani government or police. It is not conclusive that there is a real risk that you will be targeted for any harm by anyone in relation to the investigation or possible charges, or that you would not be given fair opportunity to provide your testimony and evidence before the Court to defend yourself upon your return to Pakistan. Based on the foregoing, Document 3 together with your bare assertions cannot advance your SC Request any further.

23. In paragraph 18(bb) above, you claimed that the Pakistani police will not be able to protect you as they are sided with your enemies. However, it is your bare speculation without evidential basis. As per your Additional Information submitted through DLS, the Pakistan Army managed to rescue you from the kidnappers after your brother made a complaint to the local police (see paragraph 18(i) above). You also indicated that the barrister who represented you could visit you in jail and arranged for bail when you were remanded for your alleged corruption and murder cases (see paragraph 18(k) above). You also managed to depart the country without encountering difficulties (see paragraph 18(m) above). There is thus no indication that you were adversely targeted by the Pakistani government. On the other hand, you asserted that your enemies had a widespread network across the country so internal relocation is not a viable solution (see paragraph 18(cc) above). However, you managed to hide in various places throughout Pakistan (see paragraph 18(m) above) and depart Pakistan for China with the aid of an agent (see paragraph 18(l) and 18(s) above) without hindrance imposed by the Pakistani authorities or interference from your enemies. Based on the foregoing, it is considered that reasonable state protection and internal relocation alternatives are available in Pakistan to lower or negate your perceived fear.”

26.The Director also rejected the Applicant’s claim of having to take care of his sick brother with kidney problems in Hong Kong as a valid basis for non-refoulement protection, and concluded that it is not accepted that there has been a significant change of circumstances since his previous claim was withdrawn, or that such change when taken together with the materials previously submitted in support of his previous claim would give the subsequent claim a realistic prospect of success, and therefore refused his request to make a subsequent claim.

Consideration

27.As noted above, in considering whether to allow an applicant to make a subsequent claim under Section 37ZO of the Ordinance, it is for the immigration officer to make findings of fact on the basis of the evidence in writing provided by the applicant (i) whether there has been a be any significant change of circumstances since his previous claim, and (ii) if so whether such change when taken together with the material previously submitted for the previous claim would give the subsequent claim a realistic prospect of success, which is both a question of facts to be determined by the immigration officer.

28.In most cases where the applicant’s previous claim had actually been determined by an immigration officer and/or the Board, it would be obvious that the immigration officer, whether it is the same one or a different one, may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the applicant’s previous claim in deciding whether or not to allow him to make a subsequent claim, as Section 37ZO (3) so provided.

29.In cases where the previous claim had never been finally determined before it was withdrawn, as in the present case of the Applicant’s previous claim being treated as withdrawn before its determination due to his failure to return his NCF, and hence no findings of credibility or fact had been made in his previous claim, or for that matter any availability of state protection or internal relocation to him upon his return to Pakistan, or any consideration of the COI relevant to such claim at the time, which was in 2016.

30.Henceforth some 5 years later in November 2021 when the Applicant made his request for a subsequent claim, an immigration officer would then be required to make for himself those factual findings based on the materials submitted by the Applicant for his previous claim as well as the evidence in writing provided in support of his request for the subsequent claim in order to be in a position to determine whether or not there has been any significant change of circumstances since the withdrawal of the previous claim, and if so whether such change when taken together with the material previously submitted for his previous claim would give his subsequent claim a realistic prospect of success, and that if there is any issue over the credibility of his claim, high standards of fairness would also require the immigration officer to consider whether or not to conduct a screening interview of the Applicant in the event that no such interview had ever been conducted for his previous claim.

31.In considering the Applicant’s request, the immigration officer did first refer to those material submitted by the Applicant for his previous claim in [15] of the Decision:

“Before the withdrawal of your previous claim and return to Pakistan voluntarily in 2012, you have submitted a Questionnaire in which you claimed that if you were to be returned to Pakistan, you feared that Mr rehmat Khan Wardak (“Rehmat”) and Mr Aftab Khan Wardak (“Aftab”) would harm or even kill you in order to take revenge against you for charging them for corruption and bringing them to the court when you were an officer of the Pakistan Anti-Corruption Police. You also feared of being arrested by the Pakistani Government because Rehmat and Aftab had framed you up false cases. In addition, you provided written submissions in support of your requests for re-opening your claim throughout the years, in which the basis of your claim remained consistent. Among others, in your letters dated 22 July 2013 and 24 July 2013 (submitted during your subsequent torture claim request), you claimed that you had problems with the political parties in Pakistan and the Pakistani government. In your undated letters received on 18 May 2016 and 23 May 2016 (submitted during your second re-opening request), you claimed that you arrested some politicians for corruption. They assaulted you and framed you with false cases. In considering your current SC Request, the facts and findings made by the case officer of ImmD (“the case officer”) in the NOD and the Board Member/Adjudicator in the Board’s Decision in relation to your previous claim were also taken into consideration …”

32.The immigration officer then referred to the various findings made by the case officer and the Adjudicator in their respective decisions regarding the Applicant’s previous claim, which were for obvious reason all confined only to those regarding the Applicant’s failure to return his completed NCF, and in refusing to allow him to re-open his claim, neither the case officer nor the Adjudicator found it necessary to make any findings on his non-refoulement claim under the USM (see [15(a)] – [15(e)] of the Decision).

33.In turning to the consideration of the Applicant’s request for his subsequent claim, the immigration officer also set out all his submitted evidence which as noted above were substantial, and in finding that the Applicant’s current fear still originates from his past anti-corruption actions against his enemies which have already been mentioned in his previous claim, that there is no indication that his enemies can mobilize the whole political parties to hunt and harm him countrywide, and that his claimed fear did not amount to a significant change of circumstances since his previous claim was withdrawn (see [21] of Decision), it does not appear that the immigration officer had actually made any finding of fact or assessment of such risk or referred to any relevant COI in arriving at the conclusion, and if he had, it does not appear that he had given any or sufficient reasons for reaching such assessment.

34.The same can be said about the immigration officer’s consideration of the Applicant’s claim of fear of harm from the Pakistani government and authorities over those false cases made against him, and apart from some comment about Document 3, it does not appear that proper assessment had been made regarding such risk, and if no issue was taken as to the credibility of such claim, then it is also in my view not sufficient for the immigration officer to just infer that the Applicant would be given fair opportunities to provide his testimony and evidence before the court to defend himself upon his return to Pakistan without referring to any relevant COI to corroborate such inference, given that some of those false cases involve the death penalty if convicted, and in which case it seems unreasonable or irrational for the immigration officer to suggest that state protection or internal relocation would be a viable option to the Applicant (see [22] of Decision).

35.Furthermore, given the fact that no screening interview had ever been conducted of the Applicant for his previous claim, and with such substantial amounts of information and materials provided by him for both his previous claim and his subsequent claim, it seems also reasonably arguable that high standards of fairness would require the immigration officer to consider conducting one for his request, and if the decision were not to do so, to provide the reasons therefor.

Conclusion

36.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Director’s Decision to refuse his request to make a subsequent claim is reasonably arguable on the grounds as noted above in that (i) the Director failed to make any findings regarding the Applicant’s previous claim before concluding that there had been no significant change of circumstances since the previous claim had been withdrawn; (ii) the Director failed to properly assess the availability of state protection and internal relocation as viable options to the Applicant without referring to the relevant COI; (iii) the decision that state protection or internal relocation would be available to the Applicant to minimize or negate the risk arising from the false cases made against him is unreasonable and/or irrational; and (iv) the Director failed to apply high standards of fairness in failing to conduct or to consider conducting any screening interview for the Applicant’s request, thus meeting the threshold for leave to be granted as laid down by Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

37.Accordingly, I grant leave to the Applicant to apply for judicial review of the Director’s decision on the grounds as stated, and direct that he shall within 14 days of this decision file and issue the originating summons, 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 4^th day of April 2023

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