SHAIKH AFSAR v. DIRECTOR OF IMMIGRATION

HCAL 629/2019

[2022] HKCFI 3765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 629 of 2019

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review granted.

Observations for the Applicant:

Introduction

1.  A person who has raised a claim for non-refoulement protection in Hong Kong may, before the claim is determined by an immigration officer, withdraw the claim by notifying the immigration officer in writing: Section 37ZE(1) of the Immigration Ordinance, Cap 115.

2.  Once such a claim has been withdrawn, the person may be liable to be removed from Hong Kong by the Immigration Department under Section 37Z(3)(b) of the Ordinance, and that he or she may not subsequently make another claim for non-refoulement protection unless as provided under Section 37ZO of the Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or facts made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

…”

3.  In the present case, the Applicant is a 39-year-old national of India who previously on 30 March 2008 raised a torture claim by way of a written signification to the Immigration Department on the basis that if he returned to India he would be harmed or killed by a gangster named Tariq@Sabba who had connections to the then ruling political party Communist Party of India (Maoist) (“CPIM”), but before it could be determined by the Director of Immigration (“Director”), the Applicant withdrew his torture claim by a letter dated 30 June 2011, and was subsequently on 11 July 2011 repatriated to India.

4.  Some 7 years later on 15 November 2018 the Applicant departed India for China, and from there he later on 18 November 2018 sneaked into Hong Kong.

5.  By a letter dated 18 November 2018 and posted on 23 November 2018 to the Immigration Department, of which the Director identified as his “First Submission”, the Applicant requested to make a claim for non-refoulement protection on the basis that if he returned to India he would be harmed or killed by a man named Jahangir said to be the cousin of Tariq, the gangster involved in his previous claim, over some political dispute and for which the Applicant and his brother had been assaulted by Jahangir’s men, and as Jahangir had connections to the police, the Applicant had also been detained and tortured by them.

6.  The Applicant’s request was treated by the Director as one for a subsequent claim under Section 37ZO (2) of the Ordinance, and accordingly by letters dated 3 December 2018 and 24 December 2018, the Director requested him to provide sufficient evidence in writing to satisfy an immigration officer of those requirements as noted above under subsection (2)(a) and (b) of the Ordinance.

7.  By a letter dated 30 December 2018, which the Director identified as his “Second Submission”, the Applicant claimed that due to poor education and lack of English knowledge, he might not be able to elaborate all the details of his case, whereupon the Director replied and advised that he may provide further information of his case in his preferred language.

8.  By a letter dated 13 January 2019, the Applicant in English provided further information relating to his request for making a subsequent claim, and which the Director noted as his “Third Submission”.

9.  The Director did not proceed to conduct any screening interview for the Applicant’s request, and by a Notice of Decision dated 8 February 2019 the Director refused to allow the Applicant to make a subsequent claim upon finding inconsistencies in the material facts relating to his dispute with Jahangir as provided in his First, Second and Third Submissions that casted serious doubts on his credibility as a claimant and on the veracity of his claim, and concluded that the basis therefor was not credible and not sufficient to indicate that there had been a significant change of circumstances since his previous claim was finally determined, or that such change when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

10.  On 5 March 2019 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he merely stated that he does not agree with the decision as his life is still in danger in his home country, nor did he request any oral hearing for his application.

11.  Nevertheless, given the seriousness of the issue at hand and the gravity of a decision made by an immigration officer to refuse the Applicant’s request to make a subsequent claim, for which there is no provision for appeal under Section 37ZR of the Immigration Ordinance to the Torture Claims Appeal Board (“Board”), which would otherwise be available as part of the 2-tier screening process for all non-refoulement claims at first instance under the Unified Screening Mechanism (“USM”) in place since March 2014, high standards of fairness require that the reasons of the immigration officer for refusing the Applicant’s request be scrutinized by the Court for any error of law or irrationality or procedural unfairness in such process or in the decision.

12.  In his decision the Director refused to allow the Applicant’s request to make a subsequent claim primarily on the adverse finding by the immigration officer as to his credibility for the following reasons as stated:

“9. In deciding whether or not a person may make a subsequent claim, the case officer may take into account any finding of credibility. After carefully consideration, it is decided that the credibility of your present claim is in doubt and that your request for making a subsequent claim is not acceded to.

9.1 In your First, Second and Third Submission, you stated your grounds for making your subsequent claim. However, it is noted that, even in this rather short period of time between providing the First, Second and Third Submission, inconsistencies are found in the material facts provided by you relating to your dispute with Jahangir. The inconsistencies in material facts or change in your claimed facts casts serious doubts on your credibility as a claimant and the veracity of your claim (including the present request for making a subsequent claim) as a whole.

a) In the First Submission, you said Jahangir is a supporter of TMC. In the Second Submission, you said Jahangir is a leader of TMC.

b) In the First Submission, you said after the assault by Jahangir, you were taken to the SSKM hospital. In the Second Submission, you said you were able to run away from the scene and went to the hospital to receive treatment.

c) In the First Submission, you said that you are only a “wanted man” in the local area and Jahangir did not think you would flee the country and that is why you are free to leave India by air. However, in the Third Submission, Jahangir was able to find you even you had moved to Assam, another state in India, where you had stayed for some years (which you did not mention in the First or Second Submission).

9.2 According to you, your sneaked into Hong Kong illegally without presenting for immigration clearance on 18 November 2018. Your First Submission is dated 18 November 2018. Yet, according to the postal stamp, you sent the latter only on 23 November 2015 (5 days after your entering into in Hong Kong) at the post office. You then surrendered to this department on 26 November 2018. In particular, having taking into account of your information submitted by you, it is noted that after you were removed back to India in July 2011, you claimed that you were seriously injured by Jahangir, detained by police and your office was also set on fire. It became so threatening and unbearable that you had to escape your home country. However, it appears that you have not made use of a reasonably early opportunity to seek protection after leaving India again. The delay in seeking protection casts doubt on the credibility of your claim as it is not accepted that a person, especially one like you with previous experience in seeking protection, who has allegedly experienced serious ill-treatment would have failed to seek assistance and shelter at a reasonably early time.

9.3 You claimed that Jahangir is so influential in India that he could even influence the police. However, according to your claimed facts, you began to encounter ill-treatment from him and got severely wounded by him as early as in 2015. Yet you did not make your way to seek non-refoulement protection until 3 years later in 2018. It is rather considered that you have fabricated the political dispute with Jahangir, exaggerated his influence in India and the claimed ill-treatments in order to bolster your claim.

10. Having considered all circumstances, the information provided and reasons advanced by you in the request for making a subsequent claim lack credibility. For all of the above reasons, your basis of the request for making a subsequent claim is not credible and therefore not sufficient to indicate that there has been a significant change of circumstances since your previous claim was finally determined; and the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success. You are hereby informed that your request for making a subsequent claim for non-refoulement protection is not acceded to.”

13.  From the above, it seems to me that the immigration officer found the Applicant’s subsequent claim not credible primarily for the following reasons:

(1)  That there were inconsistencies and discrepancies in the material facts as to whether Jahangir was a supporter or leader of TMC, whether the Applicant was taken to the hospital or that he went by himself after being assaulted by Jahangir, and whether Jahangir could locate him only in the local area or also in other states in India;

(2)  That the Applicant started to encounter threats and ill-treatment form Jahangir as early as in 2015 but did not seek non-refoulement protection until 3 years later in 2018; and

(3)  That after sneaking into Hong Kong on 18 November 2018, he did not post his First Submission to the Immigration Department until 23 November 2018, and then surrendered to the Department only on 26 November 2018 that such delays in seeking non-refoulement protection casted doubt on the credibility of his claim.

14.  While the immigration officer in considering the Applicant’s claim was entitled under Section 37ZD(1)(c) of the Immigration Ordinance to take into account any failure on his part to raise such claim as soon as practicable after he became liable to removal, it seems reasonably arguable to me that these so-called delays between various events as outlined by the officer above should not in fact be considered as significant or significant enough to justify casting any doubt on the credibility of his claim.

15.  More importantly, even if such delays were to be regarded as sufficiently significant, the immigration officer would still have to make his finding on credibility as to the core substance of the Applicant’s claim of fear of harm from Jahangir, of which it also seems to me reasonably arguable that those inconsistencies or discrepancies in the material facts provided by the Applicant as noted above may not be considered as such, or sufficiently to justify rejecting the credibility of his claim, given the fact that those “Submissions” were written by the Applicant in English which he did complain of not able to elaborate properly or in details that the immigration officer should have considered whether to apply the benefit of the doubt principle in his case.

16.  Above all, high standards of fairness would in my view require that any doubt of the immigration officer over such information provided by the Applicant that were considered as material be put to the Applicant for his reply, explanation or clarification, or at least to give him notice that his credibility on such information would be impeached, as Coleman J explained in Masud MD, CACV 341/2021 [2021] HKCA 1449 how the rules of fairness should come into play when the credibility of a witness’s evidence is being challenged:

“32. One of such rules that may be of relevance is the rule in Browne v Dunn. The rule requires that if a cross-examiner intends to challenge a witness’s evidence on a particular point as being untruth, questions must be put to him to give him notice that his credibility on that evidence would be impeached. The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed out to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. It is not only a rule of professional practice and a rule of conduct to be observed by the cross-examiner, but is essential to fair play and fair dealing with witnesses. Allegations directed against documents produced by a witness are also covered by this rule.

…

36. … since the rule in Browne v Dunn is essentially a rule of fair play and professional practice as at present advised we can see no reason why it should not by analogy apply in non-refouleemnt claim hearings which require a high standard of fairness.”

17.  The application of the rule in Browne v Dunn has since been followed in another non-refoulement claim appeal in Pham Van Pha, CACV 247/2021 [2022] HKCA 120, as Lisa Wong J in giving judgment of the Court of Appeal affirmed in para 22:

“ … If the Board intends to reject the applicant’s evidence on a particular point as being untrue, this should be pointed out to him so that he may have the opportunity to reply to, explain or otherwise deal with the same.”

18.  In the present case, the immigration officer did not appear to have done so, nor did he conduct any screening interview for the Applicant’s request. Granted that in most such cases involving a subsequent claim, the immigration officer may not find it necessary to conduct any further screening interview in addition to those already held for the previous claim, but the fact in the present case is that the previous claim of the Applicant was withdrawn before any screening interview had been conducted, and obviously also before any factual findings or determination could be made by an immigration officer, when otherwise like all other claimants for non-refoulement claim, the Applicant would no doubt be provided with legal representation from the Duty Lawyer Service (“DLS”) for such screening interview to fully present his case to an immigration officer, not to mention with legal assistance to prepare his all-important Non-refoulement Claim Form (“NCF”) and to provide all the necessary information for his claim.

19.  There is no question that the high standards of fairness required in the screening of a claim for non-refoulement protection, in which the Director and the Board are expected to take an active role, is a weighty consideration in favour of the holding of an oral hearing, as Cheung CJHC (as His Lordship then was) elaborated in ST v Betty Kwan [2014] 4 HKLRD 277 on the applicable principles for screening non-refoulement claimants:

“39. … high standards of fairness require the Director, or for that matter, the adjudicator to adopt an active role in screening a CAT claim. They are not permitted to simply sit back and put the torture claimant to strict proof of his claim. Depending on the facts, it may be appropriate for them to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the claimant. For instance, where it is readily apparent that something has gone amiss such as the proof documents in Prabakar that the applicant there had mentioned but was unable to produce and did not produce, or that a point has obviously been overlooked or missed out. On the other hand, there may be no duty to keep probing or inquiring where the objective circumstances make it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention. The exercise of determining whether a torture claim is valid is one of “joint endeavor”. Prahakar, para 54; TK v Jenkins [2013] 1 HKC 526, paras 21, 24 and 25. In the present context of whether to hold an oral hearing, a very practical result of all these requirements based on the high standards of fairness involved is that if any of these requirements cannot be fully satisfied without an oral hearing – and the torture claimant should be given the benefit of any doubt, an oral hearing should be held.

40. Secondly, an adjudicator should ask himself whether there is anything in the torture claimant’s story, the evidence and information available, the legal issues raised, the arguments mounted, the decision of the Director, the written petition of the claimant, and so forth, which is material to the determination of the CAT claim, and which high standards of fairness would require the torture claimant to be given an opportunity to be heard orally ( or further in writing), before a decision is made on the torture claim. For instance, if there is any point, factual or legal, that is troubling the adjudicator, which the adjudicator is not sure that an oral hearing or further submissions from the applicant cannot help answer or otherwise clarify, that is a strong pointer towards an oral hearing or (where appropriate) further written representations. An adjudicator simply cannot assume, no matter how good the legal representative of the torture claimant may be, that the legal representative (or for that matter, the torture claimant) would be able to foresee all the points that might be troubling the adjudicator after reading the petition and supporting material.”

20.  While His Lordship was referring mainly to the role and duties of an adjudicator in dealing with an appeal/petition made by a claimant to the Board, it is clear that the same principles should apply to an immigration officer at the first tier of a claim made to the Director within the same context under USM, the fact is that there was no interview by the Director’s officer for this Applicant in his previous claim due to its withdrawal, high standards of fairness require that the immigration officer in the consideration of the Applicant’s request to make a subsequent claim to hold a screening interview when issues of credibility were raised over material information provided in his Submissions, or at least to draw his attention to them and to give him an opportunity to respond in writing.

21.  As such, and given the fact as noted above that no appeal lies to the Board against such a refusal by an immigration officer to make a subsequent claim, it seems to me reasonably arguable that in failing to conduct a screening interview for the Applicant’s request or to give him an opportunity to respond to those credibility issues raised of his claim, the Director failed to apply high standards of fairness or procedural fairness in dealing with the Applicant’s request.

22.  In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Director’s decision to refuse his request to make a subsequent claim is reasonably arguable on the grounds that (i) the Director erred in law or was irrational to find that there were undue delays on the part of the Applicant to raise his subsequent claim; (ii) the Director erred in finding that there were inconsistencies and discrepancies in the information provided by the Applicant in his request for the subsequent claim; and (iii) the Director failed to apply high standards of fairness or procedural fairness in refusing the Applicant’s request without conducting any screening interview or giving him an opportunity to respond to those credibility issues raised of his subsequent claim.

23.  Accordingly, I grant leave to the Applicant to apply for judicial review of the Director’s decision on the grounds as stated, and direct that he shall file and issue an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Director as the respondent.

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