AHMED NAWAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 172/2018

[2019] HKCA 417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 172 OF 2018

(ON APPEAL FROM HCAL 770/2017)

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REASONS FOR JUDGMENT

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

Introduction

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Josiah Lam dated 9 May 2018 refusing leave to apply for judicial review.

2.  This appeal was originally listed to be heard on 8 August 2018. After reading the papers, the Court decided that we should hear from the 2^nd putative respondent. Directions were given to facilitate the same and the hearing was re-fixed to 7 November 2018.   

3.  The applicant did not attend the hearing on 7 November 2018 as he was incarcerated for another matter. The appeal was further adjourned to 6 December 2018.

4.  On 6 December 2018, the applicant appeared and the 2^nd putative respondent appeared by counsel. After hearing counsel and the applicant, we adjourned the appeal to enable the applicant to seek legal representation. We also directed that the appeal be brought up for mention on 28 March 2019.

5.  On 28 March 2019, the applicant informed us that his lawyer in the other matter would not represent him in this appeal. He had applied for legal aid but the application had yet been processed as the legal aid officer was asking for further documents from him.

6.  Further, at the hearing, Ms Lam for the 2^nd putative respondent informed the Court that her client (the Director of Immigration) would take a neutral stance though she invited us to dispose of the appeal if possible. 

7.  Due to the long lapse of time since the first hearing of the appeal and in light of the views we formed on the merit of the case, we decided that the proper course was to allow the appeal and granted leave to the applicant to make the application for judicial review. We also gave directions for the filing of the originating summons by the applicant within 28 days from the date of his receipt of these reasons for judgment. We told him that he should proceed with his application for legal aid with the benefit of this judgment and the transcript of the hearing on 6 December 2018 (which had already been sent to him). 

8.  The following are our reasons for allowing the appeal and granting leave to apply for judicial review.

Background

9.  The applicant is a national of Pakistan.  He lodged his torture claim on 16 July 2007.  His claim was based on the fear that, if he returned to Pakistan, he would be killed by his friend because he refused to join his friend’s group “to do bad things for money such as stealing, robbery and murder, etc.” 

10.  On 20 May 2011, the applicant wrote to the Director of Immigration (“the Director”) requesting to withdraw his torture claim. 

11.  About six years later, by a letter dated 6 April 2017, the applicant requested the Director to re-open his claim under the unified screening mechanism (“USM”).  In his letter dated 24 April 2017, the applicant stated that his decision to withdraw his claim was based on the compromise between Jirga (a traditional assembly of leaders that made decisions by consensus and according to the teaching of Pashtun) and his enemy.  However, in a Jirga gathering in March 2015, the applicant’s father met his enemy in person.  His enemy retracted the compromise and threatened to kill the applicant’s father.  His father warned the applicant not to return to Pakistan as his enemy repeatedly sent death threats to his father.

12.  By a notice of decision dated 16 May 2017, the Director refused to re-open the applicant’s non-refoulement claim as requested.  The Director took the view that there was no change of circumstance and the information submitted by the applicant for the re-opening of the claim could not increase the prospect of success of his claim.  The Director also did not find any special circumstance that would make it unjust not to re-open his non-refoulement claim.

13.  The applicant appealed to the Torture Claims Appeal Board against the Director’s decision.  An oral hearing was held on 14 September 2017, and the applicant testified at the hearing.   

14.  The Board rejected the applicant’s appeal on 11 October 2017.  Applying section 37ZE(2) of the Immigration Ordinance (Cap 115), the Board also agreed with the Director that retraction from an agreed settlement could not be treated as unforeseeable event. The Board said at para 13:

“ Further, regardless of the cause of the dispute, a retraction from an agreed settlement, assuming there was one, can hardly be treated as an unforeseeable event. Those matters stemmed from the dispute. The only alleged change of circumstances was that the rival party retracted from their original settlement agreement.”

The Judge’s decision

15.  On 16 October 2017, the applicant applied to the court for leave to apply for judicial review.  It was contended in the Form 86 that the decision of the “Petition Teams (Security Bureau)” was wrong and he would be in danger if he returned to Pakistan. 

16.  The applicant further deposed in his supporting affirmation dated 16 October 2017 the followings:

“ I like to tell you that the Petition Teams (Security Bureau) never test my case properly. Because they never gave me the time to explain my present situation and my life problem. I submit my supporting proof document in the [illegible] about my father disappear and my problem to unable to go in this time. I will add my EXHIBIT (1) 1 page with this. Thank you.” (sic)

17.  On 9 May 2018, the Judge gave his decision refusing leave to the applicant to apply for judicial review.  The judge’s decision was set out in the CALL-1 Form at [2018] HKCFI 997. In short, the Judge agreed with the Director and the Board that the retraction from compromise did not constitute a change of circumstance because the applicant could have foreseen it at the time of making his withdrawal request.  The Judge also did not find any special circumstance to make it unjust not to allow the applicant to re-open his non-refoulement claim.  The Judge was satisfied that there was no public law ground to reverse the decisions of the Director and the Board.

The appeal

18.  The applicant filed a notice of appeal on 21 May 2018.  He stated in the notice of appeal:

“ I would like to reject and review the decision made by the Immigration Department. They disregard my dangerous situation.” (sic)

19.  By a letter dated 21 May 2018, the applicant gave consent that this appeal be dealt with by a two-judge court.

Discussion

20.  Section 37ZE of the Immigration Ordinance (Cap 115) provides:

“ (1) A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2) Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim.

(3) If an immigration officer decides to re-open a person’s torture claim under subsection (2), the immigration officer must, by written notice, inform the person of the decision.

(4) If an immigration officer decides not to re-open the person’s torture claim, the immigration officer must, by written notice, inform the person of—

(a) the decision;

(b) the reasons for the decision; and

(c) the person’s right under section 37ZR to appeal against the decision.”

21.  In Ram Chander v Director of Immigration [2018] HKCA 585, the Court held that though such statutory provision is applicable only to torture claims, the same constraints apply under the current USM regime in respect of other non-refoulement claims.

22.  Having reviewed the materials before us, we considered it is reasonably arguable that the finding that the retraction of compromise by the applicant’s enemy was foreseeable by the applicant at the time of requesting the withdrawal of his torture claims is so obviously flawed that it is a finding that no reasonable tribunal could have made.  In this respect, we respectfully disagree with the deputy judge’s reasoning in paragraph 36 of the CALL-1 form:

“ In light of the Applicant’s original allegation, his enemies were unlikely to leave him alone or have the matter got over, so much so that the Applicant had to leave his home country. Thus the enemies’ alleged change of mind on settlement was not something that could not reasonably have been foreseen by the Applicant in the circumstance when he made his withdrawal application in mid-2011.”

23.  With respect, we cannot find any evidential basis for the Board to make the finding that the retraction from an agreed settlement could have been foreseen by the applicant in mid-2011 when he withdrew his claim.  Nor can we accept the judge’s reasoning at paragraph 36.

24.  At the hearing of 6 December 2018, Ms Chow appearing for the 2^nd putative respondent referred to a document produced by the applicant showing that he was willing to go back to his home country in May 2016 (as recounted by the Immigration Officer at para 15 of his affirmation and exhibit “HKY-6”). That was after the retraction from the settlement which, according to the applicant, took place in 2015.

25.  Ms Chow also submitted that the grounds in the Form 86 and the notice of appeal did not put forward any effective arguments against the decision of the Board.

26.  Since the applicant had been incarcerated, he did not have any opportunity to obtain interpretation service to assist him in responding to the materials put before us on behalf of the 2^nd putative respondent.

27.  More fundamentally, the Board did not refer to “HKY-6” in its decision and it is not clear to us if the applicant had been given any opportunity to explain about it in front of the Board.

28.  As regards the formulation of the grounds in the Form 86 and the notice of appeal, since the deputy judge had addressed the impact of retraction of settlement on a manifestly unsustainable basis, we took the view that we should take it into account in this appeal notwithstanding the deficiency in the notice of appeal.

29.  By reason of the serious flaw in the Board’s treatment of retraction of settlement, it is reasonably arguable that the Board had not properly addressed if there had been a material change of circumstances in the context of Section 37ZE. The reason given by the deputy judge on the topic is subject to the same flaw.

30.  We agree that the Form 86 should be amended and the applicant should consider doing so in light of this judgment, whether with legal aid or otherwise.

31.  For these reasons, we allowed the appeal and granted leave for the applicant to apply for judicial review.

32.  It should be noted that at this stage we are only concerned with leave to apply for judicial review.  The grant of leave only means that the applicant may proceed with the application for judicial review against the Board’s decision.  It does not mean that the court will find in favour of the applicant in the end.  The applicant must file and serve their originating summons within 28 days (the time limit under Order 53 Rule 5 was extended by us) from his receipt of this reasons for judgment.  He should also serve the documents on the Board and file affidavit of service in accordance with Rule 5(6) with a similar extension of time limit to do so.  The judicial review application will be processed by another judge in the Court of First Instance in the usual manner.