PA v. DIRECTOR OF IMMIRGRATION

HCAL 1668/2018

[2019] HKCFI 2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1668 OF 2018

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JUDGMENT

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INTRODUCTION

1.  This is the Applicant’s application for judicial review of a decision, or alleged decision, made by the Director of Immigration (“the Director”) on 18 May 2018 to, without any or sufficient notice, compulsorily remove the Applicant from Hong Kong to Sri Lanka, the country in which the Applicant had claimed to be at risk (“the Decision”).

2.  There are, in addition, 2 other applications by the Applicant before the court:

(1)  an application to amend the Form 86, and

(2)  an application to adduce and rely upon the 1^st Affirmation of Michael John Vilder dated 25 January 2019 (“Vidler 1”).

BASIC FACTS

3.  The Applicant is a non-refoulement claimant. She first came to Hong Kong from Sri Lanka on 27 September 2012 for employment as a foreign domestic helper.  Her employment contract was prematurely terminated on 27 December 2012, and she left Hong Kong on 16 February 2013.

4.  On 18 February 2013, the Applicant submitted another application to the Immigration Department to work in Hong Kong as a foreign domestic helper.  Her application was approved by the Immigration Department on 6 March 2016, and she returned to Hong Kong on 13 March 2013.  Her employment contract was again prematurely terminated on 18 November 2013, as a result of which the Applicant was required to leave Hong Kong within 2 weeks from the date of the termination of the employment contract (ie on or before 2 December 2013). She did not, however, leave Hong Kong and overstayed here since 3 December 2013.  The Applicant surrendered herself to the General Investigation Section of the Immigration Department on 13 January 2014.

5.  On 5 February 2014, the Applicant made a non-refoulement claim.  In essence, the claim was based on an allegation that the Applicant had been subjected to a forced marriage at the age of 14 (in 1984) in her home country with a man who was 11 years older than the Applicant, and she had suffered physical and sexual abuse by her husband, as well as by 2 other men arranged by her husband, after the marriage.

6.  On 14 October 2015, the Applicant’s non-refoulement claim was rejected by the Director.  On 26 October 2015, the Applicant filed a Notice of Appeal/Petition against the Director’s decision.

7.  On 4 December 2015, the Director issued a removal order against the Applicant.  On 21 December 2015, the Director served on the Applicant a “Notice of Removal Order and Right of Appeal” and a “Summary of Facts and Reasons for Removal”.  By the former document, the Applicant was informed that (i) the Director had on 4 December 2015 made a removal order against her on the ground that she was contravening / had contravened a condition of stay, and (ii) the Assistant Director of Immigration had authorized her detention pending her removal from Hong Kong.  The Applicant acknowledged receipt of both documents and confirmed that she understood the contents thereof.  On 21 December 2015, the Applicant indicated that she did not intend to lodge any appeal against the removal order by signing a “Declaration of Intention Not to Appeal / Declaration of Abandonment of Appeal”.

8.  On 13 January 2017, the Director rendered a further decision rejecting the Applicant’s possible non-refoulement claim based on HKBOR 2 (right to life).  On 29 March 2018, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the TCAB”) rejected the Applicant’s Notice of Appeal/Petition on all applicable grounds (“the TCAB Decision”).

9.  Up to 25 April 2018, the Applicant had been on recognizance in lieu of detention.  On that day, a review of whether the Applicant ought to continue to be released on recognizance was conducted. Taking into account the fact that the Applicant’s appeal / petition to the TCAB had been dismissed and her non-refoulement claim had been finally determined and other circumstances of the Applicant’s case, the Director considered that the Applicant’s removal from Hong Kong was possible within a reasonable time and decided that the Applicant’s recognizance should cease.

10.  On 25 April 2018, the Applicant attended the Castle Peak Bay Immigration Centre (“CIC”) to answer her recognizance.  She was interviewed by an immigration officer (Mr Tsang).  As recorded in a file note of the interview kept in the Immigration Department’s File No RBCL/834/14, during the interview, the Applicant’s immigration status was explained to her, and she was informed that her removal was imminent subject to any legal impediment (of which there was in fact none at that time).  The Applicant was then detained pending her removal from Hong Kong.

11.  The Applicant says that, at the processing desk at the CIC, she showed to the immigration officer her “Application for Legal Aid (Civil) forms” and the TCAB Decision.  She informed the immigration officer that she was appealing against the TCAB Decision, and that she was being assisted by Justice Centre Hong Kong (“JCHK”).  The Applicant further alleges that she was informed, in no uncertain terms, by the immigration officer that her case was “over” and there was nothing further that she could do.  In the draft Amended Form 86, at paragraph 9.2, it is contended that by omitting the availability of judicial review, there was a material misstatement of the Applicant’s legal position.  The allegation that the Applicant was told by an immigration officer that her case was “over” is not accepted by the Director. In any event, there is no suggestion that the Applicant was mis-led in any way into believing that her case was indeed “over”.  On the contrary, it is clear that the Applicant knew and acted on the basis that her case was not “over”, as shown by the fact that she informed the immigration officer that she was appealing against the TCAB Decision, and by her subsequent conduct described below.

12.  Upon admission to the CIC, the Applicant was issued, and signed, a Leaflet in Sinhalese setting out her rights, welfare, treatment and channels of complaint during her detention at the CIC.  The Applicant also signed a “Detainee Personal Data Declaration Form”.  In that form, the Applicant stated that she could read and write English.  The Applicant says, however, that the form was completed by an immigration officer and she was merely instructed to sign at the bottom of it, and there was no interpreter present on that occasion to translate the contents of the form to her[1].

13.  The Immigration Department then made arrangements for repatriating the Applicant to Sri Lanka.  On 27 April 2018, funding commitment was made for procuring an air ticket for the Applicant’s return to Colombo, Sri Lanka.  On the same day, another interview was conducted with the Applicant by an immigration officer.  There is no dispute that no Sinhalese interpreter was present at that interview[2]. As recorded in an internal minute (M18) kept in the Immigration Department File CL/834/14, the Applicant was informed of the case development, and she expressed her unwillingness to return to her home country.  The Applicant says that she told the immigration officer that she wished to appeal against the TCAB Decision and was waiting for assistance from a lawyer.  She also says that she told the immigration officer that she wanted to apply for legal aid and JCHK was assisting her with that[3].

14.  On 7 May 2018, the Immigration Department secured a flight ticket for the Applicant’s return to Colombo, Sri Lanka, via Mumbai, India, at 7:45 pm on 18 May 2018.

15.  The Applicant sent a letter to Mr Barnes, her former Duty Lawyer who had acted for her in the proceedings before the TCAB.  On or about 11 May 2019, the Applicant received Mr Barnes’ reply letter dated 9 May 2018, who advised her to make an urgent application to the Legal Aid Department for legal aid to apply for judicial review of the TCAB Decision, and that she could ask a welfare officer at the CIC for assistance.

16.  According to the Applicant, on 11 May 2018 (Friday), she showed the letter that she had received from Mr Barnes to 2 welfare officers, and asked for assistance in relation to her application for legal aid.  She was, however, told that it was too late in the day, and she should make a formal request on next Monday[4]. This allegation is not accepted by the Director[5]. According to Mr Pak Chun Hung, Acting Chief Immigration Officer at the CIC, generally speaking, a detainee is allowed to request a welfare officer for assistance to submit an application form for legal aid and other court forms, eg an application for leave to apply for judicial review.  The request would be submitted to the Chief Immigration Officer at the CIC for approval.  After such approval has been given, the welfare officer would prepare the relevant application form for the detainee concerned.  The completed application form for legal aid would be sent to the Legal Aid Department without delay.  For a judicial review application, the Escort Team at the CIC would arrange the detainee to file in person his/her application form at the High Court Registry.  Such matters would be recorded in the detainee’s records at the CIC.  There are, however, no records that the Applicant ever asked for assistance in relation to any application for legal aid on 11 May 2018 as alleged by the Applicant.

17.  On 12 May 2018, JCHK sent to the Applicant a “second” copy of the legal aid application form by post.  It would appear that the Applicant received the form on 14 May 2018, as shown in the “Female Detainees’ Inward Mail Records” maintained at the CIC.

18.  On 14 May 2018, the Applicant submitted a “Detainee Submission Sheet” stating that she wanted to apply for legal aid “for judicial review of [her] case”.  According to Mr Pak Chun Hung, the Applicant’s request was submitted to and approved by the Chief Immigration Officer of the CIC on the same day[6]. The Applicant says, however, that she was not provided with any legal aid forms by anyone in the CIC[7].

19.  On 15 May 2018, the Applicant submitted another “Detainee Submission Sheet” requesting to send a document (being her signed legal aid application form dated 15 May 2018) to JCHK.  The document was sent out by post on the same day, and received by JCHK on 17 May 2018.

20.  On 17 May 2018, the CIC received a memo from the Clearance Section of the Immigration Department requesting for the handover of the Applicant on 18 May 2018 for the purpose of her removal from Hong Kong.

21.  According to the Director’s evidence, on 18 May 2018:

(1)  The Applicant was seen by the Superintendent of the CIC and was informed of her removal arrangement, to which she showed no complaint or objection[8].

(2)  Afterwards, she was interviewed by the case officer[9]. Mr Wong Wai Lun (Senior Immigration Officer in charge of the Applicant’s removal) interviewed the Applicant with the assistance of a Sinhalese interpreter.  He says that the Applicant was informed of her removal arrangement including the flight itinerary.  The Applicant was co-operative during the interview.  At the end of the interview, the Applicant signed a “Declaration of Treatment Received under Supervision / Enquiry” form.  The Applicant declared that she did not have any loss, damage or complaint (including interpretation services) during the period that she was under the supervision/inquiry of members of the Immigration Department[10].

22.  On the other hand, the Applicant says that on 18 May 2018:

(1)  When she was interviewed by the Superintendent of the CIC, she reiterated that she wanted to appeal the TCAB Decision and was in the process of applying for legal aid.  However, she was told by the interpreter that there was nothing more that she could do and she should just go back to her country[11].

(2)  At the interview by the case officer, she was surrounded by 5 to 6 immigration officers each of whom had handcuffs and guns. It was indicated to her that if she did what she was told, force would not be used on her.  Also, she had previously been told by others in the detention centre that those who resisted removal would be put into solitary confinement, denied food and sometimes beaten up by officers.  She was scared of what might happen to her if she refused to comply with the immigration officers’ instructions, and thus remained “all along cooperative”[12].  In the draft Amended Form 86, the Applicant also says that she informed her case officer that she was appealing the TCAB Decision to the High Court and she was being assisted by JCHK and a lawyer, but in response, the case officer told her that “the papers were ‘useless’ and no lawyer had come to visit her.  As such, she needed to return to Sri Lanka”[13].

23.  Later in the evening of 18 May 2018, the Applicant was escorted to the Airport, and left Hong Kong and returned to Colombo, Sri Lanka, via Mumbai, India, by flight 9W75.  According to Mr Wong Wai Lun, the Applicant was co-operative, and boarded the plane and travelled on her own.

THE PROCEEDINGS

24.  On 13 June 2018, the Applicant, with the assistance of JCHK and Vidler & Co, applied for legal aid.  Legal aid was granted to the Applicant on 7 August 2018, and the relevant legal aid certificate was received by the Applicant’s solicitors on 13 August 2018.

25.  By a Form 86 dated 16 August 2018, the Applicant applied for leave to apply for judicial review of the Decision.  The relief sought by the Applicant included: (i) an order of certiorari to quash the Decision, (ii) an order that the Director should use his best endeavours to facilitate the Applicant’s return to Hong Kong to enable her to prepare and bring separate judicial review proceedings in respect of the TCAB Decision and remain in Hong Kong pending the outcome of the such proceedings, and (iii) a declaration that the Director’s (alleged) policy of removing persons from Hong Kong without adequate notice to allow them access to justice was unlawful.

26.  On 21 August 2018, the court directed a rolled-up hearing of the application for leave to apply for judicial review and the substantive application for judicial review.

27.  On 6 November 2018, the Applicant commenced separate proceedings for judicial review of the TCAB Decision (HCAL 2491/2018).  That application for judicial review has not yet been determined by the court.

28.  By a letter dated 17 December 2018, the Applicant’s solicitors (Vidler & Co) informed the court of the Applicant’s intention to amend the Form 86, with a draft Amended Form 86 being enclosed with that letter.  On 18 December 2018, the court directed that the question of amendment was to be dealt with at the rolled-up hearing.  In the draft Amended Form 86, the Applicant seeks to challenge the Director’s alleged policy or practice of removing persons from Hong Kong without any or sufficient notice of such removal.

29.  On 4 January 2019, the rolled-up hearing was fixed to take place on 27 June 2019.

30.  On 5 March 2019, upon the Applicant’s application by a summons dated 25 January 2019, the court made an order bringing forward the rolled-up hearing to 22 May 2019.  The basis of the application and the reasons for the decision were set out in the court’s written decision dated 5 March 2019 and shall not be repeated here.

DISCUSSION

31.  On behalf of the Applicant, Mr Parker advances a “single” ground of review in this application, namely, the Director’s Decision to remove the Applicant from Hong Kong to Sri Lanka without any or any sufficient notice interferes with her right of access to the court, because (says Mr Parker) “it may be more difficult to litigate from outside Hong Kong”. He submits that where the object of the challenge is the removal itself, the removal directions are a fait accompli if they are executed before the person concerned has had a real and practical opportunity to challenge them in court, and the protection sought from the court is denied by the performance of the very act which the litigant seeks to have restrained.  Such a result, Mr Parker contends, is a fundamental departure from the rule of law[14].

32.  Mr Chang (for the Director) does not dispute that the Applicant enjoys a right of access to the court, but argues that her right of access to the court is not infringed because such right does not in any way guarantee her continued physical presence in Hong Kong, and can be exercised even though she is outside the jurisdiction.  Mr Chang points out that the Applicant has been able to excise the right of access to the court from outside the jurisdiction, as demonstrated by the fact that she commenced judicial proceedings to challenge the TCAB Decision on 6 November 2018 (HCAL 2491/2018) and is currently actively pursuing those proceedings. Mr Chang relies on the decision of the Court of Appeal in Saeed v Director of Immigration [2012] 3 HKLRD 541, in which the Court of Appeal held that the proposed removal of a non-refoulement claimant (whose claim had been assessed and rejected) to Pakistan would not prevent him from pursing his civil claim against the Director for damages for unlawful imprisonment.

33.  In my view, when considering whether a person’s right of access to the court has been infringed or interfered with by being denied presence in the jurisdiction, the mere fact that the person has been able to commence and prosecute proceedings from outside the jurisdiction is not necessarily conclusive of the matter.  In some cases, as in Saeed, a person outside the jurisdiction can still have effective access to the court to pursue a civil claim for damages against the Director.  However, depending on the nature of the proceedings and the relief sought, effective access to the court may require that person’s presence within the jurisdiction.  In a case where the purpose of the proceedings is to prevent a person’s removal from Hong Kong (as in the present case) and the Director is aware that the person intends to commence such proceedings shortly, it seems to me that the right of access to the court would be infringed or interfered with unless that person is given reasonable notice of the intended removal so that he/she has a reasonable opportunity to apply to the court, if required or necessary, for interim relief to restrain the removal pending the determination of the proceedings.  What is reasonable notice would of course depend on the facts and circumstances of the case.

34.  Two other points should be mentioned here. First, a right of access to the court is not to be equated with a right to free legal representation in legal proceedings.  There is no such right, or absolute right to free legal representation, under our system.  Second, it is well established that the Director is under no legal duty to wait until the person to be removed has exhausted all possible legal remedies before effecting the removal[15]. What the right of access to the court requires, in the context of the exercise of the power of removal by the Director, is that the Director should give reasonable notice of removal to the person to be removed such that he/she can commence proceedings to challenge the removal and apply to the court, if necessary, for interim relief to restrain the removal pending the determination of the proceedings by the court.  It would then be up to that person to commence proceedings if he/she wishes to remain in Hong Kong in the interim.

35.  Under the Director’s current policy, such application would be unnecessary once relevant proceedings are commenced.  The Director’s policy on the removal of “illegal immigrants” are set out in a Legco Paper No. CB(2) 279/99-00(06) titled “LegCo Panel on Administrative of Justice and Legal Services Policy and Practice on Removal of Illegal Immigrants” dated November 1999 (“the Legco Paper”), at paragraph 4, as follows:

“In removal of illegal immigrants, our objective is to ensure that a right balance between protection of civil liberty and immigration control is maintained. With this in view, the principles guiding our removal of illegal immigrants including those who are legal aid applicants are as follows –

(a) the Director of Immigration will suspend a removal if court proceedings have been commenced, or if he knows that court proceedings are about to commence;

(b) the Director of Immigration will notify the Director of Legal Aid if a detainee who has applied for legal aid, but has not been granted it, is about to be removed;

(c) a removal will be temporarily withheld once legal aid is granted to the detainee; but

(d) an application for legal aid does not constitute a reason for a scheduled removal to be withheld.

These principles are observed as Immigration Department’s normal practice.  This is notwithstanding that the Director of Immigration has the legal powers to proceed with a removal irrespective of whether the subject has been granted legal aid and that the Director is under no legal obligation to inform the DLA of an impending removal where the subject has applied for it but not yet granted it.”

36.  The Director applies the same policy to the removal of over-stayers (such as non-refoulement claimants)[16].  According to Mr Wong Tsz Ming, Acting Chief Immigration Officer of the Clearance Section of the Immigration Department, the Immigration Department would adopt a common sense approach when considering whether “court proceedings are about to commence” under this policy.  For instance, the Immigration Department would consider whether a Form 86 has been prepared for imminent filing in court, or whether the detainee has sought assistance to be escorted to the court to file the Form 86.  The Immigration Department would also check whether the person to be removed has been granted legal aid for the purpose of legal proceedings against his/her removal from Hong Kong[17]. On the other hand, a mere assertion of an intention to apply for legal aid for judicial review proceedings, or a legal aid application per se would not constitute a reason for withholding a scheduled removal[18].  The Director’s current policy is, I consider, one which he is lawfully entitled to adopt.  In passing, I should mention that there is no suggestion that the Director’s policy as set out in the Legco Paper was not accessible, or was not known to those advising or rendering assistance to the Applicant.  There is no ground raised in either the original Form 86 or draft Amended Form 86 regarding the accessibility of that policy.

37.  In my view, the vital question for determination in the present case is whether the Applicant was give reasonable notice of her removal such as would be sufficient for her to commence judicial review proceedings to challenge the TCAB Decision which, once commenced, would bring about an automatic suspension of her removal pending the determination of those proceedings.  It should be emphasised, however, that the purpose of the notice is to give the Applicant a reasonable opportunity to commence legal proceedings. The notice does not have to be sufficient to enable her to obtain legal aid to commence proceedings, which would normally take much longer time.

38.  It is the Applicant’s case that the Immigration Department was aware, prior to removing her: (i) of her intention and desire to launch judicial review proceedings against the TCAB Decision, (ii) that such an application would still have been within time as at the date of the removal, and (iii) that the Applicant had signed an application form for legal aid for the purpose of securing legal representation in order to challenge the TCAB Decision, and had it mailed to JCHK to file the application on her behalf[19], but she was given less than 12 hours of notice of her removal[20]. The Applicant contends, accordingly, that she was not given any or any sufficient notice of her removal.

39.  I do not accept the Applicant’s complaint that she was given less than 12 hours of notice of removal.  I, consider it to be clear, on the evidence, that the Applicant was told that her removal was “imminent” as early as 25 April 2018 (see the file note referred to in paragraph 10 above).  In addition, the Applicant was informed, at another interview on 27 April 2018, of her case development (see M18 referred to paragraph 13 above).  While there was, at one stage, a dispute as to whether a Sinhalese interpreter was present at the interview on 25 April 2018 (see paragraph 52 below), the Applicant has not directly disputed that she was told about her imminent removal from Hong Kong on 25 and 27 April 2018[21].  The highest that has been said is that “[e]ven if this is accepted by the Applicant (who I am instructed cannot recall the exact words used), the Applicant all along believed she had 3 months to appeal the TCAB Decision and would not be removed before that date”[22]. I believe the Applicant was fully aware of the Immigration Department’s intention to remove her from Hong Kong, which was why she told the immigration officers that she was appealing against the TCAB Decision and JCHK was assisting with her case.

40.  Between 25 April 2018 and 18 May 2018, the Applicant had reasonable access to her lawyers, JCHK and other persons.  In particular:

(1)  she made a total of 8 phone calls to her friends, JCHK and her lawyers;

(2)  she registered a total of 6 persons in her visitors list;

(3)  she sent a letter to Mr Barnes and to her former liaison officer with the Duty Lawyer Service;

(4)  she received a letter from Mr Barnes on 11 May 2018 and from JCHK on 14 May 2018; and

(5)  she signed a legal aid application form and returned it to JCHK on 15 May 2018.

41.  In my view, the Applicant had ample time and opportunities to commence judicial review proceedings to challenge the TCAB Decision after having been informed of her imminent removal on 25 April 2018.  Mr Parker says that the Applicant was not told about the removal directions, ie the time, destination and routing of the removal until the morning of 18 May 2018[23]. One should not, however, confuse between notice of removal and removal directions. As earlier mentioned, the purpose of giving reasonable notice of removal is to give the Applicant an opportunity to commence legal proceedings.  Once the Applicant was told that her removal was imminent, she could take immediate steps to commence judicial review proceedings to challenge the TCAB Decision.  The actual removal directions were not relevant to, and did not have to be set out in, such application for judicial review.  Also, as submitted by Mr Chang:

(1)  There could be no reasonable doubt in the Applicant’s mind that the country to which she would be returned would be Sri Lanka, that being her home country.  There is no evidence that there could be any other country that the Applicant could be returned to.

(2)  In so far as routing is concerned, there is nothing to suggest that it would make any material difference to the Applicant in this case; in particular, it has not been suggested that returning the Applicant to Colombo via Mumbai would expose her to any additional risk or harm.

42.  The Applicant relies on some statistics which show that for the years 2012-2014, the average legal aid processing time in judicial review cases ranged from (i) 88 to 134 days where a Section 9 opinion was sought, and (ii) 66 to 110 days where no Section 9 opinion was sought[24], and argues that a person without funds and pro bono legal representation would have virtually no chance at all of accessing the courts to restrain his/her removal if given less than 12 hours of notice[25].  As earlier mentioned, I do not accept that the Applicant was given less than 12 hours of notice of her removal.  The Applicant had more than 3 weeks of notice before her removal was effected.  She did not require legal aid to commence judicial review proceedings to challenge the TCAB Decision.  It is everyday occurrence in this jurisdiction that non-refoulement claimants commence judicial review proceedings without the assistance of lawyers.  Under the Director’s existing policy, the critical event is the commencement of proceedings.  Once that is done, the Applicant’s removal would be suspended.

43.  As it was, up to the time of the Applicant’s removal from Hong Kong on 18 May 2018, the Immigration Department had not received any notification or indication that the Applicant had been granted legal aid, or that she had commenced, or were about to commence, legal proceedings to challenge the TCAB Decision[26]. The Director was only aware that the Applicant intended to apply for legal aid to challenge the TCAB Decision.  The relevant application was eventually made on 13 June 2018.  The Director was, in the circumstances, entitled to remove the Applicant from Hong Kong on 18 May 2018 in accordance with his existing policy.

44.  Mr Parker places substantial reliance on the judgments of Silber J and of the Court of Appeal in R(Medical Justice) v SSHD [2010] EWHC 1925 (Admin) and [2011] EWCA Civ 1710 in support of his argument that the Decision is unlawful.  It is not with disrespect that I do not propose to analyse those judgments here.  I do not do so because the discussions there were based upon a particular immigration policy in the UK, namely, a standard position of a minimum of 72 hours’ notice (including at least 2 working days) between notification of removal direction to the person to be removed and the actual removal subject to a number of specified exceptions, which has no parallel in Hong Kong.

45.  There is one other matter that I should briefly mention at this juncture.  At the hearing on 22 May 2019, the issue was raised as to the proper relief which might be granted should the Applicant’s substantive challenge to the Decision be upheld by the court, in particular whether the court could and should make an order to compel the Director to use “his best endavours to facilitate the Applicant’s return to Hong Kong …”[27].  In support of his argument that such mandatory relief could be granted by the court, Mr Parker relies upon two English authorities, namely, Ahmed v SSHD [2009] EWHC 267, at [13], and R(H) v SSHD [2015] EWHC 377 (Admin), at [188] – [196].  There are, as I see it, various problems or difficulties with such relief being granted by the court in the present case, including:

(1)  any such order would effectively fetter the Director’s discretion as to who may be permitted to enter Hong Kong, a discretion which is conferred by the legislature on the Director, not the court;

(2)  while the Director may be under a legal, negative, duty not to return a non-refoulement claimant to the country in which he/she claims to be at risk pending the assessment of the non-refoulement claim, it is arguably a different matter whether the Director ought to be required to take positive steps to facilitate the Applicant’s return to Hong Kong when, on any view of the matter, she has no legal right to enter or remain in Hong Kong;

(3)  as a matter of fact, the Applicant’s non-refoulement claim has been rejected by the Director and TCAB, whose decisions would stand unless and until they are overturned by an order of the court, and thus, as the matters currently stand, it would plainly be inappropriate for the court to exercise its discretion (if any) to order the Director to take steps to facilitate the Applicant’s return to Hong Kong; and

(4)  the form of relief proposed by the Applicant is imprecise as to what the Director is actually required to do, which is not appropriate for a mandatory order.

46.  The issue raised, while interesting, does not strictly arise for determination in view of my conclusion that the Applicant fails in her substantive challenge to the Decision.  A determination of this issue has potentially far reaching consequences.  In the circumstances, I do not propose to express any further views on this issue, which would only be obiter dicta anyway, and shall leave it for further consideration in a future case when it becomes necessary to do so.

APPLICATION TO AMENDED FORM 86

47.  In the draft Amended Form 86, the Applicant seeks to challenge the Director’s policy or practice of removing persons from Hong Kong without any or sufficient notice of removal.  On the evidence before the court, the Director’s relevant policy is that stated in the Legco Paper mentioned in paragraph 35 above, which I consider to be a lawful policy.  There is no principle of law which requires the Director to have a policy specifying the minimum period of notice of removal, or removal directions, that must be given to the person to be removed prior to the actual removal.  The proposed challenge is misconceived.

48.  The bulk of the proposed amendments set out in the draft Amended Form 86 relate to the Applicant’s version of events and the contentions advanced by the Applicant in this application for judicial review.

49.  Overall, I would allow the application to amend the Form 86 in the form of the draft before the court, with costs to the Director.

APPLICATION TO ADDUCE AND RELY UPON VIDLER 1

50.  In so far as Vidler 1 is concerned, Mr Parker submits, in paragraph 9 of his Skeleton Argument, that the affirmation provides “further information about the difficulties the Applicant has faced since her removal to Sri Lanka, which are relevant to the utility of an order that the Director facilitate her return to Hong Kong”[28].  Vidler 1 was originally filed and relied upon in support of the Applicant’s application for an order that the date of the rolled-up hearing be re-fixed to an earlier date (see paragraph 3 thereof), which application was disposed of by the court in favour of the Applicant on 5 March 2019.  The application to adduce and rely upon Vidler 1 at the rolled-up hearing is allowed, with no order as to costs.

APPLICATION FOR CROSS EXAMINATION OF DEPONENTS

51.  There is one final matter which I should deal with.  By a summons dated 7 May 2019, the Applicant applied for an order that Mr Wong Tsz Ming and Mr Pak Chun Hung, whose affirmations were filed by the Director on 23 April 2019, should attend the rolled-up hearing to be cross-examined.  On 16 May 2019, the court dismissed that application with reasons to be given later.  This I now do.

52.  Mr Parker submits that cross examination should be allowed for two reasons.  First, Mr Parker wishes to cross examine Mr Wong Tsz Ming on paragraph 31 of his First Affidavit in which he stated that the interview of the Applicant on 25 April 2018 was in the presence of a Sinhalese interpretation, whereas in the relevant file note (referred to in paragraph 10 above) it was stated that the Applicant “did not request for the assistance of an interpreter”.  Mr Wong Tsz Ming has accepted that he made an error in his First Affidavit, and filed his Second Affidavit on 15 May 2019 to correct the error.  There is thus no need to cross examine Mr Wong Tsz Ming on this point.

53.  Second, as stated above, there are various disputes of primary fact between the parties on what precisely happened during the period of the Applicant’s detention from 24 April 2018 to 18 May 2018 which are identified in paragraphs 8 to 20 of the 2^nd Affirmation of Michael John Vidler filed on 7 May 2019.  However, it is common ground that Mr Wong Tsz Ming and Mr Pak Chun Hung did not deal with the Applicant personally, and has no personal knowledge of the disputed events.  Further, it is significant that the Applicant is not in a position to give direct evidence on those disputes.  Indeed, the Applicant has not made any affirmation in these proceedings.  Her version of events is related by way of hearsay evidence through the Affirmation of Issac Laban Shaffer filed on 17 August 2018 and the Affirmation of Lucinda Hazel Overbury filed on 15 May 2019.  The Applicant cannot, for understandable reasons, attend the rolled-up hearing in person to give oral evidence.  Mr Parker has not applied to have the Applicant’s evidence taken from outside the jurisdiction.  On the other hand, although Mr Wong Wai Lun had direct dealings with the Applicant on 18 May 2018 (the date of her removal), there is no application to cross examine him. In my view, it is plain that the proposed cross examination of Mr Wong Tsz Ming and Mr Pak Chun Hung will not enable the court to resolve the factual disputes.  Moreover, for the purpose of determining the central issue of whether the Applicant was give reasonable notice of her removal such as would be sufficient for her to commence judicial review proceedings to challenge the TCAB Decision, it is not, in my view, necessary for those disputes of fact to be resolved.  For these reasons, the application for cross examination of Mr Wong Tsz Ming and Mr Pak Chun Hung is dismissed.

54.  The Director shall have the costs of the Applicant’s summons dated 7 May 2019, including the costs of the hearing on 16 May 2019.

DISPOSITION

55.  For the foregoing reasons, the application for leave to apply for judicial review is dismissed, with costs (including all reserved costs) to the Director.  All costs in favour of the Director under this judgment shall be taxed if not agreed, with certificate for one counsel. The Applicant’s own costs are to be taxed in accordance with legal aid regulations.

56.  Lastly, it remains for me to thank counsel for their assistance rendered to the court.