Re Bk

HCAL 24/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 24 OF 2009

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Before : Hon A Cheung J in Court

Date of Hearing : 11 March 2009

Date of Judgment : 11 March 2009

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J U D G M E N T

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1.This is an application for leave to move for judicial review of the policy of the Director of Immigration not to process a torture claimant’s claim under the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment 1984 (CAT), until after the claimant’s permission to remain in Hong Kong has expired, in a case where the claimant has landed in Hong Kong lawfully.  There is also an intended challenge against the Director’s refusal of the application of the applicant, a torture claimant, for an extension of stay in Hong Kong, he having arrived in Hong Kong lawfully.  There is also a further proposed challenge against the Chief Executive in Council’s refusal of the applicant’s appeal against the Director’s refusal of his extension application.

2.The Director’s decisions were made back in 2006, whereas the decision of the Chief Executive in Council was made on 30 January 2008.  So on the face of it, there have been fairly substantial delays in relation to mounting a challenge against the decisions concerned.

3.Moreover, in relation to the first challenge, it would appear that the significance of the refusal to entertain the applicant’s CAT claim has disappeared, because after the expiry of the applicant’s permission to stay and after he has become an overstayer in Hong Kong, the Director has indeed entertained his CAT claim, and I should add that the Director has since rejected his CAT claim, but the correctness of that decision is doubtful given what has been decided by Saunders J in some later proceedings regarding the lawfulness and propriety of the screening or processing procedure adopted by the Director in relation to screening CAT claims.

4.But returning to the first proposed challenge, as I say, its significance, on the face of it, seems to have disappeared because the CAT claim has indeed been entertained.  Likewise, on the face of it, the significance of the Director’s refusal to extend the permission to stay has also disappeared because, as a matter of fact, the Director has allowed or suffered the presence of the applicant in Hong Kong pending the prosecution of his CAT claim, and in fact up to this date the applicant has not been removed by the Director.

5.There was a short period of time in mid-2008 when the applicant was detained for overstaying, but he was, after a short period of detention, released on his own recognizance.  There is no suggestion that that short period of detention has affected the applicant’s ability to prosecute his CAT claim or for that purpose, I should also mention, his UNHCR refugee status claim, which has also been rejected.

6.So on the face of it, not only is there a fairly substantial delay, the proposed challenges have lost all their significance given the subsequent events.  But having heard submissions from counsel, it seems to me that there is one real potential prejudice to the applicant if he is not permitted to mount the challenges, which is this.  According to the published prosecution policy statement relating to refugee claimants and torture claimants, these claimants will not be normally prosecuted for an immigration offence such as overstaying until their claims and all appeal procedures have been concluded.  That is paragraph 8(1).  Paragraph 8(5) says if the claim is approved, prosecution will be dropped except for some immaterial offences that do not concern us.  But paragraph 8(6) is important.  It says if the claim is rejected, prosecution will be considered on the merits of the case.  In other words, whether the applicant should have been granted an extension of the permission to stay in Hong Kong by the Director does matter, because if his CAT claim should eventually fail, he runs the risk of being prosecuted for a criminal offence in Hong Kong as per the prosecution policy statement.

7.In the absence of any evidence to the contrary as to what will actually happen in this type of situation, I can only proceed on the basis of the prosecution policy statement.  In other words, there is a risk of prosecution hanging over the head of the applicant.  This is by no means an insignificant matter.

8.The policies sought to be challenged have in effect rendered the applicant an overstayer and a breaker of the criminal law in Hong Kong.  Whether there can be better ways to deal with these claimants is a matter open to debate.  Whether the existing practice or policy of turning these claimants into overstayers, subject always to the risk of prosecution if they should fail in their claims, can be justified, is again a debatable matter.

9.In terms of the threshold for granting leave, I take the view that these matters do satisfy the ‘reasonable arguability’ test.  Of course, one might say that if, ex hypothesi,the claim of such a claimant should be rejected at the end of the day, there would be nothing wrong to prosecute him for being an overstayer.  However, there could be reasonable arguments to the contrary regarding the fairness or the justice of such a position, particularly when one is talking about asylum seekers and potential refugees in a civilised society.

10.That takes me back to my first point about delay.  I have considered the explanations given for the delay in question.  The inaction between 2006 and January 2008 is easily understandable.  During that period of time there was a pending appeal to the Chief Executive in Council.  After the decision of the Chief Executive in Council was known, there was still more than a year’s delay, but last year had witnessed significant developments in the case law of Hong Kong relating to torture claimants in general.  More than one important decision has been made by the court in relation to torture claimants, how they should be treated and how their claims should be processed.

11.The applicant has throughout been represented by the same firm of solicitors, who have been actively involved in some of these cases.  He has naturally relied on his solicitors to handle his claim.

12.Having reviewed the matter, and having borne in mind the real significance of the proposed challenges to the applicant, I am of the view that the discretion of the Court should be exercised allowing the proposed challenges to proceed.

13.In arriving at that conclusion, I also bear in mind that the present case is not the only case of its type in Hong Kong.  In fact, I have been informed that there is another case of similar facts that will soon be lodged.  In my view, sooner or later the policies in question will be challenged.

14.Bearing in mind the practical significance of the proposed challenges to the applicant and everything else that I have just mentioned, in my view, the best course to take is to grant leave in the present case:

(i)  time to apply for leave to apply for judicial review be extended;

(ii)  leave to apply for judicial review be granted;

(iii)  leave to the applicant to amend his Form 86A to specifically set out the risk of prosecution for overstaying;

(iv)  costs be reserved (the applicant’s own costs be taxed in accordance with legal aid regulations).

Mr Hectar Pun, instructed by Barnes & Daly, for the applicant