Khybar v. Director of Immigration

HCAL 1018/2024

[2024] HKCFI 2778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1018 OF 2024

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;

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); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent.

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 21 June 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.The Applicant is a 36-year-old national of Pakistan who entered Hong Kong illegally on 1 July 2013 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his creditor over his unpaid debts after he lost his poultry business.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 15 October 2015 and a Notice of Further Decision dated 1 December 2016 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

4.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there was no reliable evidence of any real intention of them to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his creditor to locate him.

5.The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 13 August 2018 upon finding no merits in his claim or his appeal, and that it also confirmed the Director’s decisions.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 15 September 2020 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 2154/2018 [2020] HKCFI 2284).

7.The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 15 November 2021 (CAMP 120/2021 [2021] HKCA 1667).

8.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 9 September 2022 ([2022] HKCA 1284), and then by the Appeal Committee of the Court of Final Appeal on 31 October 2023 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.On 7 November 2023 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that he still fears of being harmed or killed by his creditor over his outstanding debts if refouled to Pakistan, and that he has a medical history of Behcet’s disease involving multiple organs and has been receiving medical follow-up and titration of medical treatment in Hong Kong for the past 8 years that he fears his refoulement to Pakistan would deprive him of the necessary treatments and expose him to life threatening and organs collapsing conditions due to inadequate medical care in his home country.

10.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.”

11.Accordingly, on 14 November 2023 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”).

12.By a Notice of Decision dated 21 June 2024 the Director refused to allow the Applicant to make a subsequent claim of fear of being harmed or killed by his creditor over his unpaid debts that the basis thereof was essentially the same as that of his previous claim which had already been properly and finally determined and disposed of, and that he also failed to provide sufficient evidence to satisfy an immigration officer that his claimed medical condition has attained a critical stage or that he will have no prospect of seeking medical care in Pakistan, or that such changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given that relevant COI show that while his ongoing medical treatment is required and the quality of available medical care in Pakistan may be less favourable than those he has been receiving in Hong Kong, it is not accepted that he will be subjected to real risk of being arbitrarily deprived of his life or of any serious harm upon his return to Pakistan.

13.On 28 June 2024 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 or in his supporting affirmation filed on the same day to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge.

14.Nevertheless, given the seriousness of the issue at hand and the implication of the Director’s decision which resulted in denying the Applicant of the right to have his subsequent claim to be properly screened under the USM notwithstanding that the factual basis thereof is clearly different from that of his previous claim and has therefore never been assessed or determined as to its merits, and as it clearly also involves a claim to resist removal by reference to ill-health, of which Lord Wilson of the UK Supreme Court in the case of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 described as one of the most controversial questions which the law of human rights can generate (para 1 of that judgment), this Court will adopt an enhanced standard in scrutinizing the Director’s reasons for refusing to allow the Applicant to make his subsequent claim.

Reasons for Director’s Decision

15.In the Director’s decision, the immigration officer first set out the documentary evidence submitted by the Applicant as to his medical condition as follows:

“11. By a letter dated 16 November 2023, you stated that you submitted your hospital medical documents which state your current situation. You were a patient of Kwong Wah Hospital for eight years. You enclosed the following documents:-

(a) Document 1: A reference letter dated 10 November 2023 issued by the consultant of Department of Medicine & Geriatrics of Kwong Wah Hospital (one page). It is stated in the letter that you had a history of Behcet’s syndrome involving multiple organs and was actively having follow-up in their hospital. You presented with life threatening and organ threatening conditions before and still required intensive treatment regimen for control of refractory disease. As such, you needed to stay in Hong Kong for close medical follow up and titration of medical treatment; and

(b) Document 2: A referral letter dated 10 November 2023 issued by the consultant of Department of Medicine & Geriatrics of Kwong Wah Hospital to the Department of Ophthalmology (one page). Among other things, it is stated in the letter that the reason for referral was “young age cataract, background Behcet’s disease”. You had past history of steroid induced cataract and previously planned for extraction.

12. On 14 December 2023, a reference letter dated 13 December 2023 issued by the consultant of Department of Medicine & Geriatrics of Kwong Wah Hospital (one page) was received. [Document 3]. It is stated in the letter that you had history of Behcet’s syndrome involving multiple organs and was actively having follow-up in their hospital. You presented with life threatening and organ threatening conditions before and still required intensive treatment regimen for control of refractory disease. As such, you needed to stay in Hong Kong for close medical follow up and titration of medical treatment. Travel outside Hong Kong was not recommended at the moment in view of the medical illness.”

16.It appears that the immigration officer did not take issue with the Applicant’s claimed medical conditions as disclosed in those documents submitted by him, but found that they do not support or advance his claim of any real risk of harm that he would face if returned to Pakistan, as the relevant COI show that the Pakistani authorities have endeavoured to improve their health care facilities and services which may not be of the same quality of those which the Applicant has been receiving in Hong Kong, but that it is not accepted that he will be subjected to any real risk of being arbitrarily deprived of his life or which may amount to serious harm upon his return to Pakistan that the Director was not satisfied that the Applicant has complied with the requirements under Section 37ZO(2) of the Immigration Ordinance, as it was in the decision as follows:

“16. … you concerned that you needed to get medical treatment in Hong Kong. You stated that you were a patient of Kwong Wah Hospital for eight years (see paragraph 11 above). You provided Documents 1 to 3 to show that you had background of Behcet’s disease. Even if there is no dispute to these documents and that you may require further medical treatments, it cannot be implied that you cannot receive adequate medical care in Pakistan.

17. There is updated information showing that the Pakistani authorities are endeavoured to improve the healthcare facilities and services. According to a news article “Field hospitals project launched in Punjab” dated 2 may 2024 by The Dawn, “The Punjab government on Wednesday launched the ‘Field Hospital’ programme aimed at providing essential healthcare services to the rural population. A total of 32 field hospitals – 21 mobile healthcare units and 11 small field hospitals (mobile diagnostic units) - are being deployed in rural areas of Punjab to increase healthcare coverage.” Another news article “Punjab CM inaugurates three mega health projects” dated 11 May 2024 by Business Recorder stated that “Inaugurated the three mega health projects namely “200 Clinics on Wheels, 100 Rural Ambulances and a Doctor in Every Hospital” here at the Lahore Fort Alamgiri Gate, Chief Minister Punjab Maryam Nawaz Sharif has vowed to provide quality healthcare facilities to the masses at their doorsteps.” The objective country information above shed some light on the standard of medical are in Pakistan, which may not be in the first class, but should not be taken as inadequate or inaccessible.

18. It is also considered that Documents 1 to 3 do not support your assertion of the real risk of harm that you claimed you would face if returned to Pakistan. Although it is noted in Documents 1 & 3 that you needed to stay in Hong Kong for close medical follow up and titration of medical treatment (see paragraphs 11(a) & 12 above), there is insufficient indication or evidence adduced to show that your asserted illness has attained a critical stage, or that you will have no prospect of seeking medical care in Pakistan. As a result, the fact that ongoing medical treatment is required and the quality of available medical care in Pakistan may be less favouurable than those you are currently receiving in Hong Kong cannot be regarded as you will be subjected to real risk of being arbitrarily deprived of your life or considered as amounting to any serious harm upon your return to Pakistan. Therefore, your concern and Documents 1 to 3 cannot advance your Request any further.

19. In light of the above, it is not accepted that: there has been a significant change of circumstances since your previous claim was finally determined; and the change, if any, when taken together with the materials previously submitted in support of your previous claim, would give the subsequent claim a realistic prospect of success. Your Request for making a subsequent claim under section 37ZO of the Immigration Ordinance, Cap. 115, is therefore not made, i.e. the Director is not satisfied that you have complied with the requirements set out in section 37ZO(2) of the Immigration Ordinance, Cap. 115”

Applicable Principles

17.Given the obvious controversial issue of removing a foreign citizen claiming of ill-health which may amount to a violation of his or her rights under Article 3 of the European Convention on Human Rights, or BOR 3 of our HKBOR, it would be relevant to first refer to the principles applicable to such cases by charting the development of the jurisprudence in the European Court of Human Rights (“ECtHR”) as well as the UK Supreme Court (“UKSC”) in relation to such claims so as to note how the law has evolved over the years, starting from the decision of the ECtHR in D v United Kingdom (1997) 24 EHRR 423 where the applicant was about to die and the essence of the decision was not the absence of treatment in his home country but the inhumanity of essentially pulling a man off his deathbed.

18.In that case the applicant was a citizen of St Kitts of West Indies who was earlier convicted of trafficking cocaine into UK, and upon his release from prison the Secretary of States sought to deport him who was then dying from an advanced stage of AIDS, the ECtHR held that the case involved very exceptional circumstances that there was no guarantee that he would be able to obtain any nursing or medical care in St Kitts or that he had family there willing or able to care for him that his suffering would attain the minimum level of severity required by Article 3 that there were compelling humanitarian considerations that weighted against his expulsion ([52] – [54] of the judgment).

19.The next relevant case is the decision of the UK House of Lords in N v Secretary of State for the Home Department [2005] UKHL 31, [2005] 2 AC 296, which involved a citizen of Uganda whose claim for asylum had been rejected and the Secretary of State sought to return her to Uganda, but she was HIV positive and was suffering from various AIDS illnesses, and with subsequent antiretroviral therapy (“ART”) and chemotherapy her condition had been stabilized, and if the administration of such treatments were to continue in UK she would be likely to live for decades, but her ability to access to appropriate medication and facilities in Uganda was problematic, and the prospect of her survival there for more than 2 years was bleak, nevertheless the House of Lords held that in the light of her stable condition that her claim under Article 3 failed, while her subsequent application before the ECtHR under N v United Kingdom (2008) 47 EHRR 39 also failed, as the Court observed that since the judgment in the D case the courts had never held that removal of an alien would violate Article 3 on grounds of ill-health, or that a reduction of life expectancy in the event of removal had ever in itself been held to amount to a violation of Article 3, and that while there might be other very exceptional cases in which humanitarian considerations are equally compelling, the high threshold for violation set in the D case should be maintained ([42] – [43] of the judgment).

20.Similarly in Yoh-Ekale Mwanje v Belgium (2013) 56 EHRR, where the applicant was a citizen of Cameroon who was also HIV positive but in stable condition with the administration of ART in Belgium, the ECtHR held that her return to Cameroon would not violate her rights under Article 3, as it observed that the case was indistinguishable from the N case even though it was improbable that the applicant would obtain the necessary medication in Cameroon and that without it her survival in the short or medium term was in doubt.

21.Then came the case of Paposhvili v Belgium (2017) Imm AR 867 in which the Grand Chamber of the ECtHR found it necessary to clarify the applicable principles and proceeded to make significant pronouncements about the procedural requirements of Article 3 as regard the existence and accessibility of appropriate treatment in the receiving country.

22.In that case the applicant was a citizen of Georgia who had lived in Belgium with his wife and family for 18 years, but his application for asylum was rejected after he had been convicted of various criminal offences including robbery and extortion, and when the Belgium government sought to deport him to Georgia, he applied to the ECtHR on medical grounds under Article 3 due to his grave ill-health including chronic lymphocytic leukemia, active pulmonary tuberculosis and hepatitis C, and from which he died following his hearing and during the Court’s deliberation, but the Grand Chamber decided to proceed to judgment which it delivered on 13 December 2016, and held that his deportation by the Belgium government would have violated his rights under Article 3 upon reiterating the applicable general principles and observing that the authorities should not be prevented from scrutinizing an applicant’s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage directly or indirectly the responsibility of the public authorities of that country, such as the expulsion of aliens who was seriously ill, and upon recapitulating the case-law the Grand Chamber concluded that the application of Article 3 only in cases where the person facing expulsion is close to death, which had been its practice since the judgment in the N case, has deprived such application to those aliens who are seriously ill but whose condition is less critical, and who have been able to provide substantial grounds for believing that he or she would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy, as the Court elaborated as follows:

“181. The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the cases contemplated in D. v. the United Kingdom.

182. In the light of the foregoing, and reiterating that it is essential that the Convention is interpreted and applied in a manner which renders its rights practical and effective and not theoretical and illusory (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; Mamatkulov and Askarov v. Turkey [GC], no. 46827/99 and 46951/99, § 121, ECHR 2005-1; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 175, ECHR 2012), the Court is of the view that the approach adopted hitherto should be clarified.

183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.

184. As to whether the above conditions are satisfied in a given situation, the Court observes that in cases involving the expulsion of aliens, the Court does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens. By virtue of Article 1 of the Convention the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants’ fears and to assess the risks they would face if removed to the receiving country, from the standpoint of Article 3. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Article 13 and Article 35 § 1 of the Convention (see M.S.S. v. Belgium and Greece, cited above, §§ 286-87, and F.G. v. Sweden, cited above, §§ 117-18).”

23.The Grand Chamber then proceeded to set out the appropriate procedures as regard the duties of the applicants in cases of this kind, namely to adduce evidence capable of demonstrating that there are substantial grounds for believing that if returned to their home country that they may not be able to access or receive the same or similar medical treatment that they have been receiving in the returning country, and the obligations of the authorities to subject the alleged risks to close scrutiny and to dispel any doubts raised by them and to protect the integrity of the applicants under Article 3 as follows:

“185. Accordingly, in cases of this kind, the authorities’ obligation under Article 3 to protect the integrity of the persons concerned is fulfilled primarily through appropriate procedures allowing such examination to be carried out (see M.S.S. v. Belgium and Greece, cited above, §§ 286-87, and F.G. v. Sweden, cited above, §§ 117-18).

186. In the context of these procedures, it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment (see, in particular, Trabelsi v. Belgium, no. 140/10, § 140/10, § 130, ECHR 2014 (extracts)).

187. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). The risk alleged must be subjected to close scrutiny (see Saadi, cited above, § 128; Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 214, 28 June 2011; Hirsi Jamaa and Others, cited above, § 116; and Tarakhel, cited above, § 104) in the course of which the authorities in the returning State must consider the foreseeable circumstances of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circumstances (see Vilvarajah and Others, cited above, § 108; El-Masri, cited above, § 213; and Tarakhel, cited above, § 105). The assessment of the risk as defined above (see paragraphs 183-184) must therefore take into consideration general sources such as reports of the World Health Organization or of reputable non-governmental organizations and the medical certificates concerning the person in question.

188. As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill-treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.”

24.The Grand Chamber further explored the various factors for the authorities in the returning country to take into consideration including verifying whether the care generally available in the receiving country is sufficient and appropriate but not necessarily equal or equivalent to the returning country in practice for the treatment of the applicant’s illness so as to prevent him or her from being exposed to treatment contrary to Article 3, as well as accessibility of the care to the individual concerned such as the costs of the medication and treatment, the existence of any social and family network, and the distance to be traveled in order to have access to the required care in the receiving country:

“189. As regards the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.

190. The authorities must also consider the extent to which eth individual in question will actually have access to this acre and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care (see Aswat, cited above, § 55, and Tatar, cited above, §§ 47-49) and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (see Karagaz v. France (dec.), no. 47531/99, 15 November 2001; N. v. the United Kingdom, cited above, §§ 34-41, and the references cited therein; and E.O. v. Italy (dec.), cited above).

191. Where, after the relevant information has been examined, serious doubts persist, regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from eth receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (on the subject of individual assurance, see Tarakhel, cited above, § 120).

192. The Court emphasizes that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State. Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its health-care system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act – in this instance, expulsion – what would result in an individual being exposed to a risk of treatment prohibited by Article 3.”

25.These principles and procedural requirements imposed on the applicant and the returning state by the Grand Chamber then came up for consideration and observations by the UKSC in the case of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, where the applicant was a citizen of Zimbabwe who arrived in the UK in 2000 and was granted lawful residency in 2004 when he was at about the same time diagnosed with HIV, and for which he subsequently started taking ART which increased his CD4 blood count. In 2009 he was convicted and sentenced to 9 years imprisonment for various criminal offences, and upon his release the Secretary of State sought to deport him to Zimbabwe, and after his initial claim under Article 8 of the Convention was rejected by the Immigration Tribunals and his subsequent appeal to the Court of Appeal also failed, the applicant then raised his claim under Article 3 that in Zimbabwe he would not be able to continue with his HIV treatment, as while a range of anti-retroviral medications were available, the only one he was responding well to was not, and without access to this medication, his CD4 blood count would fall again, leaving him at risk to infections which if untreated would lead to death.

26.The UKSC by its judgment dated 29 April 2020 allowed the appeal and held that removing AM to Zimbabwe where he would not be able to access the medication he needed would be in breach of Article 3, and remitted his claim under Article 3 to the Upper Tribunal to be heard on up-to-date evidence as properly direct to the Grand Chamber’s substantive and procedural requirements set out in the Paposhvili case, and of which the Supreme Court made the following observations while proposing to follow the Grand Chamber’s decision:

“32. … The basic principle is that, if you allege a breach of your rights, it is for you to establish it. But “Convention proceedings do not in all cases lend themselves to a rigorous application of [that] principle …”: DH v Czech Republic (2008) 47 EHRR 3, para 179. It is clear that, in application to claims under article 3 to resist return by reference to ill-health, the Grand Chamber has indeed modified that principle. The threshold, set out in para 23(a) above, is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated. It may make formidable intellectual demands on decision-makers who conclude that the evidence does not establish “substantial grounds” to have to proceed to consider whether nevertheless it is “capable of demonstrating” them. But, irrespective of the perhaps unnecessary complexity of the test, let no one imagine that it represents an undemanding threshold for an applicant to cross. For the requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment. All three parties accept that Sales LJ was correct, in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of article 3. This means a case which, if not challenged or countered, would establish the infringement: see para 112 of a useful analysis in the Determination of the President of the Upper Tribunal and two of its senior judges in AXB v Secretary of State for the Home Department [2019] UKUT 00397 (IAC). Indeed, as the tribunal proceeded to explain in para 123, the arrangements in the UK are such that the decisions whether the applicant has adduced evidence to the requisite standard and, if so, whether it has been successfully countered fall to be taken initially by the Secretary of State and, in the event of an appeal, again by the First-tier Tribunal.

33. In the event that the applicant presents evidence to the standard addressed above, the returning state can seek to challenge or counter it in the manner helpfully outlined in the judgment in the Paposhvili case at paras 187 to 191 and summarized at para 23(b) to (e) above. The premise behind the guidance, surely reasonable, is that, while it is for the applicant to adduce evidence about his or her medical condition, current treatment (including the likely suitability of any other treatment) and the effect on him or her of inability to access it, the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state. What will most surprise the first-time reader of the Grand Chamber’s judgment is the reference in para 187 to the suggested obligation on the returning state to dispel “any” doubts raised by the applicant’s evidence. But, when the reader reaches para 191 and notes the reference, in precisely the same context, to “serious doubts”, he will realise that “any” doubts in para 197 means any serious doubts. For proof, or in this case disproof, beyond all doubt is a concept rightly unknown to the Convention.

34. This court is not actively invited to decline to adopt the exposition of the effect of article 3 in relation to claims to resist return by reference to ill-health which the Grand Chamber conducted in the Paposhvili case. Although the Secretary of State commends the Court of Appeal’s unduly narrow interpretation of the Grand Chamber’s exposition, she makes no active submission that, in the event of a wider interpretation, we should decline to adopt it. Our refusal to follow a decision of the ECtHR, particularly of its Grand Chamber, is no longer regarded as, in effect, always inappropriate. But it remains, for well-rehearsed reasons, inappropriate save in highly unusual circumstances such as were considered in R (Hallam) and R (Nealon) v Secretary of State for Justice (JUSTICE intervening) [2019] UKSC 2, [2020] AC 279. In any event, however, there is no question of our refusing to follow the decision in the Paposhvili case. For it was 15 years ago, in the N case cited at para 2 above, that the House of Lords expressed concern that the restriction of article 3 to early death only when in prospect in the returning state appeared illogical: see para 17 above. In the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should today depart.”

27.In its subsequent judgment on the latest relevant case of Savran v Denmark (Application no. 57467/15) delivered on 7 December 2021, the Grand Chamber of the ECtHR shed more light on the extent of the procedural requirements of Article 3 pronounced in the Paposhvili case, and where the applicant, a Turkish national diagnosed with paranoia schizophrenia entered Denmark in 1991 when he was 6 years old. In 2008 he was convicted of assault but exempted from punishment on account of his mental illness, and was committed to forensic psychiatric care instead where he was subsequently made subject to an expulsion order, and following a series of appeals which eventually came before the Grand Chamber, by its judgment dated 20 January 2020 the Court reaffirmed the standard and principles established in Paposhvili case as follows:

“133. Having regard to the reasoning of the Chamber and the submissions of the parties and the third parties before the Grand Chamber, the latter considers it useful with a view to its examination of the present case to confirm that the Paposhvili judgment (cited above) offered a comprehensive standard taking due account of all the considerations that are relevant for the purposes of Article 3 of the Convention. It maintained the Contracting states’ general right to control the entry, residence and expulsion of aliens, whilst recognizing the absolute nature of Article 3. The Grand Chamber thus reaffirms the standard and principles as established in Paposhvili.

134. Firstly, the Court reiterates that the evidence adduced must be “capable of demonstrating that there are substantial grounds” for believing that as a “seriously ill person”, the applicant “would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (ibid., § 183).

135. Secondly, it is only after this threshold test has been met, and thus Article 3 is applicable, that the returning State’s obligations listed in paragraphs 187-91 of the Paposhvili judgment (see paragraph 130 above) become of relevance.

136. Thirdly, the Court emphasizes the procedural nature of the Contracting States’ obligations under Article 3 of the Convention in cases involving the expulsion of seriously ill aliens. It reiterates that it does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens. By virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants’ fears and to assess the risks they would face if removed to the receiving country, from the standard of Article 3. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights (ibid., § 184).”

28.The Grand Chamber also reaffirmed and elaborated that the same principles apply to cases concerning the expulsion of seriously ill applicants irrespective of what particular type of medical issue, physical or mental, that underlay their health condition as the standard is sufficiently flexible to be applied in all situations which may constitute treatment proscribed by Article 3 irrespective of the nature of the illness:

“137. The Court has consistently applied the same principles in cases concerning the expulsion of seriously ill applicants, irrespective of what particular type of medical issue – somatic or mental – underlay their health condition. In the Paposhvili judgment (cited above), before it proceeded to formulate the new standard, the Court had regard to case-law relating to applicants suffering from both physical and mental illnesses (see paragraph 127 above and the range of authorities cited in Paposhvili, cited above, § 179). In the wording of paragraph 183 of the Paposhvili judgment, the standard refers to “a seriously ill person”, without specifying the type of illness. Thus, it is not limited to any specific category of illness, let alone physical ones, but may extend to any category, including mental illnesses, provided that the situation of the ill person concerned is covered by the Paposhvili criteria taken as a whole.

138. In particular, in its relevant part, the threshold test established in paragraph 183 of the Paposhvili judgment (cited above), rather than mentioning any particular disease, broadly refers to the “irreversibility” of the “decline in [a person’s] state of health”, a wider concept that is capable of encompassing a multitude of factors, including the direct effects of an illness, as well as its more remote consequences. Moreover, it would be wrong to dissociate the various fragments of the test from each other, given that, as noted in paragraph 134 above, a “decline in health” is linked to “intense suffering”. It is on the basis of all those elements taken together and viewed as a whole that the assessment of a particular case should be made.

139. In the light of the foregoing, the Court considers that the standard in question is sufficiently flexible to be applied in all situations involving the removal of a seriously ill person which would constitute treatment proscribed by Article 3 of the Convention, irrespective of the nature of the illness.”

29.Henceforth from the latest development of the jurisprudence in the ECtHR and the UKSC in relation to claims under Article 3 of the Convention to resist return of aliens by reference to ill-health, the procedural requirements can be summarized as follows:

(a)  That it is for the applicant to adduce before the returning country evidence capable of demonstrating that there are substantial grounds for believing that if removed he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3;

(b)  That where such evidence is adduced in support of an application under Article 3, it is for the returning country to dispel any doubts raised by it by subjecting the claimed risk to close scrutiny, and to address relevant COI including reports of reputable organizations about treatments in the receiving country;

(c)  That it is for the returning country to verify on a case-by-case basis whether the care generally available in the receiving country is in practice sufficient to prevent the applicant from being exposed to treatment contrary to Article 3, and also to consider the accessibility of the care treatment to the particular applicant including by reference to its cost if any, to the existence of family or social network, and to its geographical location; and

(d)  That if serious doubts continues to surround the impact of removal, the returning country has to obtain an individual assurance from the receiving country that appropriate treatment would be available and accessible to the applicant.

Analysis

30.In the present case before me, it is clear at the time of the Director’s decision that those judgments of Paposhvili, AM, and Savran were already available, and as noted above that the Director did not take any issue with the Applicant’s claimed medical conditions of being a patient of Kwong Wah Hospital for 8 years with Behcet’s syndrome involving multiple organs and with life threatening conditions that required intensive treatment regimen for control of refractory disease, as well as close medical follow-up and titration of medical treatment (see para 11 above), but in subjecting such claimed risk to close scrutiny, it seems to me reasonably arguable that the Director failed to address the relevant COI regarding availability of treatments of such medical conditions of the Applicant in Pakistan, when the immigration officer simply referred to some news article about a field hospital project launched in Punjab just to “shed some light on the standard of medical care in Pakistan” ([17] of Director’s decision), let alone to consider the accessibility of the necessary care treatment to the Applicant in his particular situation as part of the procedural requirements noted in paragraph 29 above in the consideration of the Applicant’s request to make a subsequent claim.

31.In the premises, and for the given reasons, I am of view that the Applicant’s intended application for judicial review of the Director’s decision in refusing to allow him to make his subsequent claim is reasonably arguable on the bases stated above, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Disposition

32.Accordingly I grant leave to the Applicant to apply for judicial review of the Director’s decision on the ground that the Director in refusing his request to make a subsequent claim to resist removal by reference to his ill-health failed to properly comply with the procedural requirements in the consideration of relevant information as to the availability of treatment of his medical condition in Pakistan or the accessibility of such care treatment to him in his circumstances and situations in his home country, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Director as respondent.

Dated the 10^th day of October 2024

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