PHAM VAN HUNG v. IMMIGRATION DEPARTMENT

HCAL 357/2018

[2020] HKCFI 719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 357 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

The application for leave to apply for Judicial Review of the decisions of Director of Immigration dated 12 August 2016 and 16 January 2017 be dismissed.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of Vietnam who had repeatedly entered Hong Kong illegally with the last occasion on 12 October 2013 and was arrested by police on the same day, for which he was convicted and sentenced to prison for 32 months.  Upon his release from prison and was then referred to the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by some local commune-officials over a land dispute.

2.  By a Notice of Decision dated 12 August 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

3.  By a Notice of Further Decision dated 16 January 2017 the Director again rejected the Applicant’s claim after receiving and considering further materials from him which maybe relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

4.  The Applicant did not lodge any appeal to the Torture Claims Appeal Board (“the Board”) against either decision of the Director, and instead more than one year later on 6 March 2018 filed a Form 86 for leave to apply for judicial review of the Director’s decisions, but neither in his Form nor in his supporting affirmation did he provide any ground for seeking relief other than just repeating his claim that his life would still be in danger if returned to Vietnam.

5.  Regardless which decision of the Director that the Applicant wishes to judiciallyreview or both, section 37ZR of Part VIIC of the Ordinance provides that an applicant aggrieved by a decision of an immigration officer may appeal to the Appeal Board, and section 37ZS requires that the notice of appeal must be filed within 14 days after notice of the decision is given to the applicant unless late filing is allowed by the Board.

6.  These provisions for a non-refoulement claimant to bring an appeal to the Appeal Board against the Director’s assessment arose, historically, when the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) was extended to Hong Kong in 1992, and thereafter in compliance with its obligations under the Convention, the Hong Kong SAR put in place an administrative system for the screening of such claims under the Convention, which has evolved into a two-tiers system, as McWalters J (as he then was) examined its administrative and legislative policies of the system in AM v Director of Immigration [2014] 1 HKC 416:

“ 9. In compliance with its obligations under the Convention the HKSARput in place an administrative system for the screening of claims made under the Convention. This administrative policy has necessarily had to change as it responded to an evolving jurisprudence in this area and the enhanced screening process to which this applicant was subjected was implemented by the Director on 24 December 2009. This enhanced screening process,now superseded, consisted of two tiers. The first tier, which still exists,is a determination of the claim by an Assessor appointed and trained by the Director. Should the Assessor, on behalf of the Director, find the claim not established then the claimant had a right to petition the Chief Executive under Article 48(13) of the Basic Law. This was the second tier.

10. This screening process, hitherto an entirely administrative arrangement, has now been replaced by a statutory based one. In July 2012,legislation was enacted which had the effect of replacing the administrative regime previously in place. This legislation, the Immigration (Amendment) Ordinance, came into operation on 3 December 2012. It creates a statutory framework to replace the current enhanced administrative mechanism for determining torture claims, and includes the establishment of the Torture Claims Appeal Board to hear appeals against refusal decisions on claims.

…

13. This duty of determining the petition was performed by Adjudicators appointed by, and exercising the delegated authority of, the Chief Executive. …”

7.  His Lordship then went on to hold that it is only after the claimant has exhausted all his remedies under this processing scheme that he may apply for judicial review in the High Court in paragraph 14 of his judgment:

“ Throughout the first tier screening process the claimant is legally representedby a lawyer provided by the Duty Lawyer Service. The Duty Lawyer Servicelegal representation continues through the second tier, the adjudication process,should there be one, but ceases when that process comes to an end. If the claimant’s petition is dismissed by the Adjudicator, then the claimant will have exhausted all his remedies under the processing scheme. His only option thereafter is to apply for judicial review in the High Court. …”

8.  As such and in the premises, it is plain that for both administrative and legislative intents under the exiting processing scheme, if the Applicant feels aggrieved by the Director’sdecisions, he must first appeal to the Appeal Board pursuant to section37ZR of the Ordinance, and only if his appeal is dismissed by the Board that he may come to the High Court to apply for leave to judicially review the Board’s decision.

9.  For these reasons it is both premature and invalid for the Applicant to challenge the Director’s decisions by way of judicial review without first appealing to the Appeal Board under section 37ZR of the Ordinance.  Accordingly, I refuse to grant leave for him to apply for judicial review of the Director’s decisions and dismiss his application but without prejudice to him to do so under the provisions of Order 53, rule 3 of the Rules of the High Court, Cap 4A after he has exhausted all his remedies under the processing scheme.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1