MS AND OTHERS v. DIRECTOR OF SOCIAL WELFARE

HCAL 57/2015

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 57 OF 2015

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D E C I S I O N
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A. INTRODUCTION

1.  This leave application to apply for judicial review raises the questions relating to what the applicants said to be the Director of Social Welfare (“the Director”)’s duty to provide humanitarian assistance to visitors in Hong Kong who intend to make non-refoulement claims once their permissions to stay in Hong Kong expire.

2.  The applicants are Egyptian nationals.  The 1^st and 2^nd applicants are the parents and 3^rd and 4^th applicants their young children.  They entered Hong Kong in March and April 2015 as visitors.[1]  The limits of their stay were up to 21 June and 5 July 2015.

3.  However, it is their case that they are indeed asylum seekers entering Hong Kong intending to make non-refoulement claims.  At the same time, given the status of the law,[2] they were not in a position to make the claims until their permissions to stay expired and faced the risk of refoulement.

4.  It is also their case that they then had run out of their own money while still staying in Hong Kong as visitors waiting for the expiry of the permission to stay so as to lodge their non-refoulement claims.  As the source of other charity funding had also dried up, they could hardly afford food and accommodation to maintain a proper and humane living condition.  They said they were in a desperate and destitute state.

5.  Through their solicitors (then acting pro bono), the applicants sought welfare assistance from the Director in April 2015 to provide them with basic financial and accommodation needs.  In declining these requests, the Director in the reply letters respectively dated 24 and 27 April 2015 stated effectively that “visitors are not normally eligible for social welfare services of Hong Kong, but should instead seek assistance from other possible means necessary (e.g. approaching their respective Consulate in Hong Kong).  Discretion and special arrangements can be considered on a case by case basis, but only if there are justifiable reasons demonstrating that normal arrangements are proven not viable.”

6.  On 28 April 2015, the applicants was granted legal aid to mount an intended judicial review seeking to challenge (1) an alleged blanket policy of the Director not to provide emergency food and shelter assistance to persons waiting to seek protection against refoulement; and (2) the Director’s failure and/or refusal to provide food and shelter to the applicants.

7.  Further, premised on this intended judicial review, on the same day, the applicants made an urgent ex parte on notice application for an anonymity order and interim relief.

8.  The urgent application was heard before Lok J.  At the hearing, the Director undertook to pay the applicants’ hostel fees and to provide them with food rations during Saturdays, Sundays and public holidays pending the determination of the applicants’ interim relief.

9.  Later, on 11 May 2015, the Director extended this undertaking to the expiry of the applicants’ respective limits of stay as visitors.  Thereafter, upon confirmation of their non-refoulement claims having been lodged with the Immigration Department, the applicants have been referred by the Director for assistance from the International Social Service – Hong Kong Branch (“ISSHK”), commissioned to provide humanitarian assurance to non-refoulement claimants, and are currently receiving assistance.

10.  This is the hearing of the application for leave to apply for judicial review by the applicants.

B. THIS LEAVE APPLICATION AND THE PROPOSED GROUNDS OF JUDICIAL REVIEW

11.  In this application, the applicants say the Director has a policy (“the Policy”) that he would not normally provide any financial assistance to visitors in Hong Kong, although he would consider granting by way of exception such assistance depending on the circumstances of each case.  The Policy is evidenced by the Director’s letters respectively dated 24 and 27 April 2015 as quoted above.  On the other hand, it is common ground that the Director does as a matter of policy provide humanitarian assistance through ISSHK to all those overstayers who have formally lodged their non-refoulement claims for screening under the unified screening mechanism (“USM”).

12.  Thus, the applicants further say, in essence under the Policy, those putative asylum seekers (“the Putative Asylum Seekers”) (like the applicants) who have entered Hong Kong initially as visitors but are (or are in an imminent situation of) facing destitution while waiting for the expiry of their visitor’s visas before they could formally lodge a non-refoulement claim would not receive any humanitarian assistance.  This, the applicants contend, is unlawful.

13.  In support of these contentions, the applicants initially raised four grounds of judicial review in the Form 86 to say why the Policy and the Director’s earlier decision in not providing assistance to the applicants are unlawful.  However, given that they have since been receiving aids from the Director and later through the ISSHK, Mr Deng for the applicants confirms that the applicants would no longer pursue any relief in relation to the Director’s earlier decision itself and would also limit the challenges of the Policy to three grounds instead.

14.  Further, for the purpose of the present leave application, the applicants have put in a draft Amended Form 86 to revise these grounds and the reliefs sought.

15.  These grounds can be summarised as follows.

16.  Under Ground 1,[3] the applicants argue that the Director is under a legal duty to provide emergency humanitarian assistance to persons like the applicants so as to avoid destitution or infliction of degrading treatment.  This duty arises from:

(1) Article 3 of the Bill of Rights Ordinance (Cap 383) (“BOR”),[4] which prohibits the Government from subjecting persons within her jurisdiction irrespective of immigration status to inhuman or degrading treatment.[5] Destitution is a form of inhuman or degrading treatment, and thus Article 3 of the BOR prohibits the Government from subjecting the Putative Asylum Seekers from suffering destitution.

(2) Common law to provide for fundamental protection against destitution: R v Inhabitants of Eastbourne (1803) 4 East 103, at p 107, per Lord Ellenborough CJ.

17.  Under Ground 2,[6] the applicants say that the Director under his responsibilities to administer social welfare in Hong Kong has a constitutional obligation to provide basic accommodation, clothing and food for the class of persons (as the applicants) who are the Putative Asylum Seeks, and who can prove that they have exhausted all other means of providing emergency shelter and food and where the Director of Immigration is entitled as a matter of law to wait until the tourist visa expires to process their non-refoulement claims.  The applicants argue that the Director’s failure to review and amend his policies in relation to persons like the applicants is in breach of these constitutional duties.  In support, Mr Deng submits that such duties arise from a proper construction of Articles 36 and 145 of the Basic Law (“BL”), read in conjunction with Hong Kong’s international obligations under the Convention of the Rights of the Child (“CRC”) and the International Covenant of Economic, Social and Economic and Cultural Rights (“ICESCR”) (which counsel says is guaranteed and protected by way of Article 39 of the BL).

18.  Under Ground 3,[7] it is contended that the Director’s application of the Policy in normally not providing humanitarian support to the Putative Asylum Seekers who are in destitution while waiting to formally make the non-refoulement claims is unlawful as (a) he has fettered his discretion; (b) it is irrational; and (c) this is in violation of the common law principle of equality in distinguishing between those who have applied for protection under the USM and those who are waiting to be eligible to apply for protection under the USM.

19.  Counsel says these three grounds raise the following questions of law:

(1) Whether the Director has a constitutional duty, whether positively to provide humanitarian assistance, or a negative one, to avert destitution (Ground 1).

(2) Whether the Director’s constitutional duty requires him to, as a matter of law, at least review his policies to ensure that his exercise of discretion is not at various with the aforesaid duties (Grounds 2 and 3).

20.  Thus, the reliefs now sought in the draft Amended Form 86 are:

(1) A declaration that Article 3 of the BOR (incorporating Article 7 of the ICCPR) and the common law oblige the Director to ensure that the putative asylum seekers do not suffer destitution, or face imminent destitution.

(2) The Policy in relation to putative asylum seekers are unlawful and in breach of Article 3 of the BOR and common law, or irrational in the public law sense.

21.  Mr Shieh SC (leading Ms Grace Chow) for the Director and the Director of Immigration oppose leave.  Leading counsel argues that the intended judicial review has been rendered academic given that the applicants are now receiving humanitarian assistance, and in any event the applicants no longer have any sufficient interest in the matter to bring the challenge.  Alternatively, the Director submits that the proposed grounds of judicial review are without any arguable merits.

22.  Mr Deng however says the intended judicial review has not been rendered academic in light of the above important legal questions raised, which are bound to arise again.  Moreover, counsel says the applicants represent generally the interests of those persons in the position of the Putative Asylum Seekers.  In the premises, he says leave should be granted if the court agrees with him that these grounds are at least reasonably arguable.

23.  I am prepared to proceed to first consider this leave application on the basis of the merits of the grounds of judicial review.

C. MERITS OF THE PROPOSED GROUNDS

C1. Ground 1

24.  In my views, this ground is not reasonably arguable.  I will explain why.

25.  Mr Deng rightly accepts that the applicants are not to demand a right to welfare benefits which the Director provides to Hong Kong permanent residents.  Counsel rightly further says that they would not be so bold to advise that the applicants have this right.  Mr Deng therefore reiterates that their case is no higher than this: the Director has a duty under the law to provide, where appropriate, short term emergency humanitarian assistance to persons like the applicants who seek protection from non-refoulement in Hong Kong.  Properly understood in the context of the applicants’ arguments, these appropriate cases are when the Putative Asylum Seekers are facing or in an imminent position of facing destitution.

26.  Thus, even in the applicants’ case, the relevant question is whether the Policy accommodates such “appropriate” circumstances.  If so, there is then no arguable case on a general level that the Policy is unlawful.

27.  In this respect, it is clear that even under the Policy as objectively and properly construed, the Director is not saying that he would never provide humanitarian assistance to visitors, including in appropriate cases the Putative Asylum Seekers.  What the Policy means is only that the Director would only do so when the circumstances so justify and that is dependent on a case by case basis.  In relation to this, I do not understand the Director’s said position to be saying that even in situation where destitution or that there is an imminent risk of destitution can be shown and proved, it would not amount to circumstances justifying the provision of humanitarian assistance.[8]  As a matter of fact, in the present case as summarised above, the Director had provided the applicants even before they had lodged the non-refoulement claims the necessary humanitarian assistance when the applicants eventually satisfied him that they were facing destitution.

28.  As such, even assuming that (and I am not determining that it is) the applicants’ above contentions on the law that the Director has a duty in the appropriate circumstances to provide humanitarian assistance to persons (including Putative Asylum Seekers) facing destitution are correct, there could not be any arguable case that the Policy is in breach of any such legal obligations.  This is so as the Policy properly construed is not saying that the Director would not provide humanitarian assistance to the Putative Asylum Seekers even if they can prove and show that they are in destitution or are in an imminent position of becoming so.

29.  Faced with this, Mr Deng then says that the applicants’ complaint that the Policy is illegal under this ground is in substance that it has not published the criteria as to what would amount to those circumstances that would justify the Director to provide the Putative Asylum Seekers humanitarian assistance.

30.  Leaving aside the question of whether this alternative argument has been properly raised even in the draft Amended Form 86, I am of the view that they are equally unarguable for the following reasons.

31.  One of the fundamental underlying planks of the applicants’ case is that destitution amounts to inhuman or degrading condition which requires the Director to act as a matter of law.  Thus understood, the applicants’ said alternative case is premised on effectively requiring the Director to identify in the Policy generally what are the criteria or factors that would be sufficient to amount to inhuman or degrading conditions.  In other words, it requires the Director to set out the formula for what would amount to inhuman or degrading conditions or treatment.

32.  However, the Court of Final Appeal in GA v Director of Immigration (2014) 17 HKCFAR 60 has said that, as a matter of principle, it is impractical and inappropriate to set out a general formula of what would amount to inhuman or degrading treatment, as that must be dependent on the facts and circumstances of each case, and it is up to the person alleging such treatment to prove it and to the requisite level of severity.  The rationale is explained by Ma CJ at paragraph 49 as follows:

“49. It is, I think, important to note the following aspects of IDT [inhuman or degrading treatment] when one is considering what it means in the present case:

(1) The references in the passage just quoted to bodily injury and physical pain are perhaps more apt in describing torture or punishment, rather than IDT.

(2) However, a minimum level of severity must still be reached before treatment can be said to amount to IDT. In R (Limbuela) v Secretary of State for the Home Department, Lord Bingham of Cornhill said this, ‘Treatment is inhuman or degrading if, to a seriously detrimental effect, it denies the most basic needs of any human being’.

(3) I agree with this statement but of course, like most statements of principle of a general nature, it will be the relevant individual facts and circumstances that one must inevitably examine in order to arrive at a conclusion in any given case. In the context of IDT, one will have to look at those facts and circumstances individual to the applicant in question. In R (Limbuela) v Secretary of State for the Home Department, reference was made to factors such as age, gender, mental and physical health and condition, any facilities or sources of support.

(4) Put in this way, an inquiry into the relevant facts and circumstances will mean that there is no precise formula as to whether, in any given case, the minimum level of severity has been reached. One can really only point to relevant factors that may have to be taken into account, although I accept in many cases there will be common factors. Context, however, is important. In R (Limbuela) v Secretary of State for the Home Department, the relevant context was the position of asylum seekers who claimed to be destitute and who had no means of real support, not even any guarantee of overnight accommodation on a daily basis. The context of the present case - persons who have been in Hong Kong for prolonged periods since becoming protected persons - is different.

(5) Mr Fordham QC urged upon us to state that persons in the position of the applicants in the present case, who showed the following characteristics - being mandated refugees or screened-in torture claimants, living on Government handouts, maintained at subsistence level, with nowhere to go and no expectation that they would be leaving Hong Kong in the foreseeable future - must be automatically deemed to have satisfied the test of IDT if they were not to be permitted to work. The trouble with this submission is that it does not recognise the difficulty, if not impossibility, of formulating a precise factual formula to establish IDT in every case. I reiterate that the correct approach is to examine the relevant facts and circumstances and context of any particular case and any particular person.

(6) This approach accords with principle. In R (Limbuela) v Secretary of State for the Home Department, there are a number of passages precisely making the point that it is impossible to formulate a simple factual test applicable to all cases. In most cases, an exercise in judgment will be required and each case will have to be judged on its own facts.” (emphasis added)

33.  Given that as a matter of principle it is impracticable and undesirable to set out a general formula of what would amount to inhuman or degrading treatment, it is in my view unarguable that there is a duty on the Director to set out the general criteria as what would amount to such inhuman or degrading circumstances that would justify the grant of humanitarian support to Putative Asylum Seekers as contended by the applicants.

34.  In the premises, it is not reasonably arguable that the Director’s approach under the Policy of exercising his discretion on a case by case basis having regard to all the facts and circumstances of an individual’s case is unlawful.

35.  I would not grant leave under this ground.

C2. Ground 2

36.  Ground 2 is equally unarguable.

37.  First, it is well established the CRC and the ICESCR being undomesticated international conventions have no force of law in Hong Kong. Article 39(1) of the BL cannot assist the applicants.  No purported rights under these conventions are therefore engaged.  See: GA, supra, paragraph 60, per Ma CJ, paragraphs 82 - 83, per Chan NPJ.

38.  Second, insofar as Articles 36 and 145 of the BL are concerned, as rightly submitted by Mr Shieh, as held by Ribeiro PJ at paragraph 23 of Kong Yunming v Director of Social Welfare (2013) 16 HKCFAR 950, Article 36 confers a constitutional right on Hong Kong residents to social welfare in accordance with law. Furthermore, Bokhary PJ held at paragraph 163 that Article 36 of the BL does not extend to non-residents in Hong Kong.  Therefore, as non-Hong Kong residents, the applicants and Putative Asylum Seekers plainly cannot rely on Article 36.  Neither can Article 145 of the BL assist them.  As held in Kong Yunming, supra,at paragraph 33, Article 36 read with Article 145 provides the framework for identifying a constitutionally protected right to social welfare.  At paragraph 34, it was held that Article 145 endorses the rules and policies established under the previous social welfare system and in existence as at 1 July 1997, and those constitute the particular rights protected by Article 36.  In the present case, the previous social welfare system did not provide for non-refoulement claimants or visitors.  Therefore the applicants cannot draw on Article 145 to argue that there is a constitutionally protected social welfare system which had provided for the class of persons the applicants once represented, ie, Putative Asylum Seekers, and must continue to provide for them.

39.  For these reasons, I would also not grant leave under this ground

C3. Ground 3

40.  The arguments that there is fettering of the Director’s discretion or that the Policy per se is irrational (given either that it would not provide humanitarian assistance to Putative Asylum Seekers until they are already in a state of destitution or that there is the lack of published criteria as to what would amount to exceptional circumstances under the Policy) are, for the same reasons I have rejected Ground 1 above, similarly not reasonably arguable.

41.  Insofar as the arguments based on inequality are concerned, they are premised principally on the contentions that there is no rational basis for distinguishing between persons entitled to the USM or not on the mere basis of whether the Director has commenced processing of the non-refoulement claim or not.[9]

42.  However, I cannot see how it could be reasonably argued that there is no rational basis to do so.

43.  In the case of visitors, such as the applicants (even if they claim to be Putative Asylum Seekers), they seek to enter Hong Kong validly as visitors.  In doing so, they have sought to satisfy the immigration officials at the control point, among others, that (a) their genuine purpose of entering Hong Kong is for visiting; and (b) importantly, they have sufficient funds to support their limited period of stay in Hong Kong.  

44.  On the other hand, in relation to those non-refoulement claimants who have formally lodged their claims, the purpose of their stay in Hong Kong and the likely period of time that they would be so staying for the purpose of undergoing the screening are very different from that of the visitors.

45.  In the premises, for the purpose of determining whether humanitarian assistance should be given, I see ample rational justification for the Director to devise the Policy which on the face of it distinguishes generally the position of visitors (whether or not they would eventually claim for asylum) from those non-refoulement claimants.  Further and in any event, in respect of seeing whether there is such rational justification, the court in judicial review should give a wide margin of appreciation to the Director as the matter relates to the administration of social welfare and public resources in Hong Kong.  See: Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at paragraphs 72 and 73; Kong Yunming, supra,at paragraph 42.

46.  For all these reasons, this ground is also not reasonably arguable and I would refuse to grant leave under it.

C4. Lack of interest in this proposed judicial review

47.  Finally, I would further accept the Director’s submissions that leave to apply for judicial review should also be refused on the basis that the applicants do not have any sufficient interest to continue with the proposed judicial review:

(1) As the applicants are now non-refoulement claimants and in any event have been granted humanitarian assistance by the Director, the subject matter and the success or failure of the proposed judicial review would not directly or indirectly affect them.  They therefore no longer have any interest whatsoever in the proposed application.

(2) Further, for the same reasons, their interest and position are also entirely different from those Putative Asylum Seekers waiting to seek protection against refoulement, and thus could not “represent” (as they purport to do so now) these categories of persons.

(3) In the premises, they no longer maintain a sufficient interest in this matter in challenging the Policy.  Leave should thus also be refused on this basis: Order 53, rule 3(7); Hong Kong White Book 2016, paragraph 53/14/18.

D. CONCLUSION

48.  I would dismiss the leave application for the reasons I have given above.[10]

49.  I would also make an order nisi that there be no order as to costs, and that the applicants’ own costs be taxed in accordance with legal aid regulations.