Re Ri

HCMP 3295/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3295OF 2013

(On an intended Appeal from HCAL No. 141 of 2012)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1.This is an application for extension of time to appeal against the decision of Chung J [“the Judge”] made on 8 November 2012.  By that decision, the Judge refused to grant leave to the applicant to apply for judicial review in respect of a Form 86 dated 6 November 2012.  In that Form 86, the Applicant challenged the decision of Adjudicator of 20 September 2012 rejecting his Petition against the determination of the Director on his torture claim.  At that stage, the Applicant was not legally represented. Though he had applied for legal aid, it had not been granted to him before leave is refused.  Legal aid was refused by the Director on 20 December 2012.

2.The application for leave to appeal out of time was filed on 5 December 2013.  It was annexed with a draft amended Form 86 which the Applicant intended to substitute with the one placed before the Judge.  The amended Form 86 was drafted by counsel.  The Applicant applied for legal aid again on 22 February 2013 and legal aid was granted on 8 May 2013.  

3.In the draft amended Form 86, instead of seeking judicial review on the original grounds advanced in the Form 86 before the Judge, the Applicant seeks to expand his case substantially.  Most of the grounds set out in the draft amended Form 86 had not been canvassed before the Judge.  On the original Form 86, one can readily understand why the Judge had refused leave.

4.Further, in the draft amended Form 86, not only does the Applicant challenge the decision of the Director on his torture claim, he also included in it a claim under Article 2 of the Hong Kong Bill of Rights (underpinned by Article 6 of the International Covenant on Civil and Political Rights and Article 39 of the Basic Law).  This is the right not to be subject to cruel, inhuman or degrading treatment or punishment [“the CIDTP claim”].  In addition, he also relied on a claim under the Convention relating to the Status of Refugees 1951 and the Protocol relating to the Status of Refugees 1967 [“the Refugee claim”].

5.There have been important decisions by our Court of Final Appeal since the Judge’s refusal of leave pertaining to CIDTP claims (Ubamaka v Secretary for Security (2012) 15 HKCFAR 743) and Refugee claims (C v Director of Immigration [2013] 4 HKC 563).  The decisions of the Court of Final Appeal have changed the understanding as to the obligations on the part of the Director of Immigration in exercising his power to remove a person advancing grounds which may come within these claims.

6.Based on the previous understanding of the law, the Director and the Adjudicator did not consider the CIDTP claim and the Refugee claim.  Neither were they canvassed before the Judge.

7.As a result of these decisions by the Court of Final Appeal, the Director has put in place a new composite scheme for screening called Unified Screening Mechanism [“USM”] taking into account his obligations according to these decisions.

8.There is no suggestion that the Applicant is barred from submitting his CIDTP claim or Refugee claim to the Director for consideration under the USM (which has come into operation since March 2014).  Nor is there any suggestion that he is subject to any risk of removal pending the processing of these claims.

9.Thus, the position we have is that there has not been any substantive determination of the CIDTP claim and the Refugee claim by the Director.  In these circumstances, we cannot see any reason why the Applicant should not be required to have his claims determined under the USM before the court entertains any application for judicial review regarding the same.  Even though we are concerned with fundamental rights, the court is still exercising a supervisory jurisdiction in these kinds of cases.  Notwithstanding the need for the court to adopt an anxious scrutiny and to examine whether the high standards of fairness have been satisfied (see Secretary for Security v Prabakar (2004) 7 HKCFAR 187), the primary decision maker is the Director.  We do not find anything said in Ubamaka or C v Director of Immigration to contradict this fundamental principle of public law. 

10.In short, in the absence of a determination by the primary decision-maker when it is possible for an applicant to submit his or her CIDTP claim and/or Refugee claim to that decision-maker for consideration, it is pre-mature for the court to entertain such claims by way of judicial review.  To allow such claims to be advanced in the absence of a primary decision is to arrogate the court to the role of a primary decision-maker.  This is not the proper role of the court in an application for judicial review.

11.At the hearing, we were told by Mr Ngan that solicitors for the Applicant had written to the Immigration Department demanding that his CIDTP and Refugee claims be assessed in accordance with the recent authorities.  Also, in a letter dated 12 March 2014, the Applicant indicated to the Immigration Department that he is willing to be rescreened for these claims and apply for the same.  In our view, that is the proper way to proceed and we do not see any reason why the Director should refuse to entertain his request for screening under the USM.

12.For these reasons, it is not appropriate to grant leave to amend the Form 86 to incorporate these claims in the present application.

13.As regards the torture claim, as we said the grounds of challenge have also been substantially expanded.  Notwithstanding the substantial reformulation of the Applicant’s grounds, an incurable defect in his torture claim is the absence of any state involvement or acquiescence in the matter which gave rise to his claim.  This was highlighted both in the determination by the Director and the decision of the Adjudicator (at para 24).

14.Mr Ngan referred us to the unfruitful attempt by the Applicant’s family to obtain help from the police and contrast that with the police’s handling of the case involving his brother chopping others.  The two incidents are obviously different in nature and they could not form any reasonable basis for drawing any inference of state involvement or state acquiescence.  The Director had adequately dealt with the issue of state protection and these allegations of the Applicant in the determination of 13 August 2012.  He had not placed further material in this respect before the Adjudicator or before us.  The fact that Jalil was the right hand man of Shamsul Islam (a member of the parliament from the Applicant’s home locality) did not take the matter further.  In our view, the torture claim is doomed to fail.

15.In the circumstances, we refused to grant leave to the Applicant to pursue a hopeless appeal out of time.  As said above, our decision would not prejudice the Applicant in terms of his CIDPT claim or his Refugee claim, which are pending before the Director under the new scheme.

Mr Francis Ngan, instructed by John M Pickavant & Co (DLA), for the Applicant