KOUSAR RUBINA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1641/2021

[2024] HKCFI 2663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1641 OF 2021

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J U D G M E N T

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FACTUAL BACKGROUND

1.  This is in relation to the 5^th applicant, who is a minor and one of the members of the family. He was formerly represented by the 1^st applicant, his mother. However, his mother has passed away.

2.  At the last hearing, the 5^th applicant applied to withdraw his application. However, since his was a minor, the case was adjourned for the Official Solicitor to act for him.

3.  The Official Solicitor applies by letter dated 10 September 2024 for discharge for the reason that the 5^th applicant was removed from Hong Kong on 29 February 2024, relying on section 37ZF of the Ordinance.

4.  Having considered that the 5^th applicant had returned to his country voluntarily, the Court will accede to the Official Solicitor’s request. However, this Court takes this opportunity to clarify the operation of section 37ZF of the Ordinance as it may be misleading for the situation where the applicant was forced to depart Hong Kong by way of repatriation by the Immigration Department.

CONSTRUCTION OF SECTION 37ZF

5.  Section 37ZF of the Immigration Ordinance, Cap.115 (“the Ordinance”)  provides:

“37ZF Deemed withdrawal of torture claim on claimant’s departure

(1)  A torture claim (whether a claim pending final determination or a substantiated claim)  made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant (for whatever reason)  leaves Hong Kong….”

6.  The expression if the claimant (for whatever reason)  leaves Hong Kong does not apply to a situation where the applicant was repatriated by force by the Immigration Department.

7.  In PA v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office and Director of Immigration [2019] HKCFI 3111, DHCJ Bruno Chan, 20 December 2019, the court held:

“43.  Whilst it is true that section 37W(1)  does restrict only those persons subject or liable to removal and with no right of abode or to land in Hong Kong may claim non-refoulement protection, but in the Applicant’s case, she was removed by the Immigration Department under a removal order, which is not a case of her leaving Hong Kong under section 37ZF(1), as the word “leave” under subsection (1)  in my opinion implies a voluntary action, for whatever reason, on the part of the claimant, as otherwise it would be liable to be abused by the authorities to prevent, pre-empt or put an early end to any non-refoulement claim by such claimant, and of which I certainly cannot believe to be the true intention of the legislation.”

8.  The above decision is bolstered by the decisions of 2 other Court of the First Instance cases.

9.  In PA v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office and Director of Immigration [2019] HKCFI 2019, Hon Chow J (as he then was)  15 August 2019, held:

“35. … 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:

(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)[1].  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.”

10.  In MD Yazdani v Director of Immigration [2023] HKCFI 1046, Hon Coleman J, 26 April 2023, held:

“26.  As a result, the Government changed the removal policy on 7 December 2022.  The amendment and its background are set out in the paper submitted to the LegCo titled “Enhancing the Handling of Non-refoulement Claims”.  The policy now adopted is that the Director may generally proceed with the removal from Hong Kong of unsubstantiated non-refoulement claimants, upon the CFI’s dismissal of their applications at either the leave stage or the substantive stage, notwithstanding there may be extant or contemplated appeal proceedings.

27.  However, it is also emphasised in the LegCo paper that notwithstanding the general policy, the Director will consider all the relevant circumstances of the individual cases in pursuing removal operations.”

11.  It is therefore clear that the Director of the Immigration Department had given his undertaking to the public that the claimants will not be removed by force before the determination of their applications for judicial review of the Board’s Decisions by the Court of the First Instance.

12.  Section 37ZF should be construed accordingly and forced departure of the claimant by the Immigration Department before the determination of the judicial review application of the Board’s Decision by the Court of the First Instance should not be taken as “the claimant leaves Hong Kong” under section 37ZF of the Ordinance.

13.  The Court expects the Immigration Department to keep the normal practice as agreed by the Director at the legislature and before the court. 

14.  In the letters from the Immigration Department informing the court that the applicants had been removed, it will be better if they reveal the circumstances under which the applicants were removed.

15.  For this case, as the 5^th applicant had made clear that he wished to return to his country together with his siblings, his removal should be taken as voluntary. Section 37ZF applies to this situation.

16.  In Re Manik Md Mahamudun Nabi [2022] HKCA 471 the Court of Appeal held at §19:

“(1)  The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

17.  This authority applies to the present situation as the withdrawal is valid.

DISPOSTION

18.  On this basis, I shall make an order in terms as follows:

a.  the 5^th applicant’s application be dismissed;

b.  the Official Solicitor be discharged from acting as the next friend of the 5^th applicant in these proceedings; and

c.  no order as to costs.