MAHMUD MD SULTAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2940/2018

[2022] HKCFI 2576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2940 of 2018

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 the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his notice of decision dated 1 August 2017 (the “Notice”) and an unidentified decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”).

2.  The Applicant is a national of Bangladesh. As the chronology revealed, he entered Hong Kong illegally on 16 October 2015 and lodged a non-refoulement claim on 21 October 2015. His claim is founded on his fear that he would be harmed or killed by members of the Awami League political party because of his participation in one of the antagonizing political parties, namely Hefazat-e-Islam.

3.  By the Notice, the Director dismissed his claim on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. He appealed to the Board against the Notice. The appeal was heard on 27 November 2018. On 21 December 2018, before the Board handed down its decision, the Applicant filed the Form 86 seeking leave to apply for judicial review of the Board’s decision yet to be delivered. Eventually, the Board handed down its decision on 4 January 2019, dismissing the appeal and affirming the Director’s decision in the Notice (the “Decision”). Hence, it is clear that the Decision is the decision in respect of which the Applicant sought leave to apply for judicial review. It was non-existent and yet to be made at the time of filing of the leave application.

4.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the leave application be determined on paper without an oral hearing.

Discussion and conclusion

5.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board under section 37ZR of the Immigration Ordinance, Cap. 115 and the Applicant has invoked those procedures. At the time of the filing of the leave application, the Director’s decision in the Notice would be and now has been superseded by the Board’s Decision. It is no longer susceptible to judicial review: Re Moshsin Ali[5]. The remaining question is whether this Court should grant leave to apply for judicial review of the Decision which was non-existent at the time of filing of the leave application but has been brought into existence thereafter as it now stands.

6.  That question has been answered by the Court of Appeal in Mohammed Israil[6]. The Court of Appeal held that such an application is premature and bound to fail. It said at paragraph 14 of its judgment:

“14. In our view, the intended review is bound to fail. By the time the Form 86 was filed, the applicant’s appeal against the Director’s decision had not yet been heard. He should not have taken out an application for judicial review in parallel, and before the outcome of the appeal to the Board was known. Even if the Form 86 was intended to be against the Board’s decision, it would still be premature since the appeal to the Board had yet to be heard and determined…”

7.  In Mohammed Israil, when the leave application was made, the appeal had not yet been heard. In the present case, the appeal had been heard and the Decision was pending. The distinction is immaterial. The decision by the primary decision-maker was not available as on the date of filing of the leave application. In a judicial review, the court exercises a supervisory jurisdiction over the decision of the administrative body which is the primary decision-maker. When the decision by the primary decision-maker is still pending, there is no subject matter on which the court may exercise its supervisory jurisdiction. Thus, not until the primary decision-maker has made its decision would and could the court have jurisdiction.

8.  However, as the situation now stands, the Decision has been made. The next question is whether in the circumstances, the court should exercise the jurisdiction. The Form 86 as it now stands does not identify the decision to be reviewed. In fact, at the time of filing of the leave application, the Decision did not exist. The Applicant had no cause of action. Thus, the answer to this question depends on whether leave will be granted to amend the Form 86 so that it is referable to the Decision.

9.  For an action commenced by writ, amendment to the statement of claim by adding a cause of action which does not exist as at the date of the issue of the writ would not be allowed: Hong Kong Civil Procedure (2022) paragraph 20/8/6. In Telecommunications & Technology Asia (BVI) Ltd v Outblaze Ltd[7], Recorder A. Chow SC (as he then was) held that a statement of claim could not be amended to introduce a cause of action which was not in existence or had not yet accrued at the time of the issue of the writ: see Lark International Finance Ltd v Lam Kim Marisa[8]. In Re PM, which began as an application for leave to apply for judicial review of the decision of the Director, Patrick Li J applied the above reason and refused the applicant’s application to amend the leave application by adding the decision of the Board to be reviewed.

10.  This Court is aware of a line of United Kingdom authorities in which the courts took a more relaxed approach in asylum cases and children welfare cases by allowing subsequent decisions of the original decision-maker to be taken into account, such as R(O) v Hammersmith and Fulham LBC[9]; Ex p Turgut[10]; Caroopen v Home Secretary[11]. What the courts did in those cases was to simply take into account subsequent decisions of the original decision-maker in its review of an earlier decision. There were no issues about reviewing the subsequent decisions. Hence, the question of amendment did not arise.

11.  Arguably, the Hong Kong courts should adopt the same relaxed approach in non-refoulement cases where fundamental rights, life and freedom are at stake. It can be a sensible and pragmatic solution in appropriate cases, such as when there is a particular need for timely resolution of the judicial review application. However, it is the Applicant’s expectation that this Court will review the subsequent decision in respect of which he did not have a cause of action to start with. The question of amendment becomes a live issue. This Court considered it is bound by the decision of the Court of Appeal in Mohammed Israil. The present case is not an appropriate case for the more relaxed approach mentioned above.

12.  Worst of all, the Applicant was abusing the legal process in these proceedings. There are prescribed procedures for appeal to the Board against the decision of the Director. The Applicant knew and invoked those procedures. While the Board was deliberating, he sought to apply for judicial review of the decision yet to be made by the Board. He did so regardless of whether the Decision would turn out to be in his favour. These proceedings could be seen as improper pressure exerted on the Board. He was trying to gain an improper procedural advantage by securing an early hearing for his judicial review application, should the Board make an adverse decision. He was trying to re-write the procedures for his benefit. He was upsetting the proper functioning of the non-refoulement scheme and wasting public resources. If such conduct should be encouraged, the legitimate interest of other non-refoulement claimants who follow proper procedures would be prejudiced. The Applicant has not applied for amendment. This Court will not countenance and encourage such abuse by ordering an amendment on its own initiative.

13.  For the above reasons, the Applicant’s leave application is refused. He will have to make a fresh application, if he wishes to pursue a judicial review of the Decision.

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

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