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ARSLAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2024] HKCFI 2663-EN-2024-10-21

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

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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

________________________

BETWEEN

	Kousar Rubina	1^st Applicant
	Arslan Muhammad	2^nd Applicant
	Faizan Muhammad Irfan Komal Nouman Muhammad	3^rd Applicant 4^th Applicant 5^th Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Judgment:

21 October 2024

________________________

J U D G M E N T

________________________

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determination or a substantiated claim) made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant (for whatever reason) leaves Hong Kong….”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

	(K.W. Lung)
	Deputy High Court Judge

The 5^th applicant represented by Official Solicitors.

[1] See Mr Wong Tsz Ming’s Affidavit, paragraphs 27 and 28.

HCAL 1641/2021

[2024] HKCFI 480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1641 of 2021

BETWEEN
	Kousar Rubina	1^st Applicant
	Arslan Muhammad	2^nd Applicant
	Faizan Muhammad	3^rd Applicant
	Irfan Komal	4^th Applicant
	Nouman Muhammad	5^th Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of documents only; or
consideration of documents and 1^st Applicant being absent and 2^nd to 5^thApplicants being present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  The 2^nd applicant’s application for leave to apply for Judicial Review be refused;
2.  The 1^st, 3^rd and 4^th applicants’ application for leave to apply for judicial review be dismissed; and
3.  The 5^th applicant’s application be adjourned to a date to be fixed pending the Official Solicitor acting as the next friend of the 5^th applicant for his application.

Observations for the Applicant:

The procedural history

1. The 1^st applicant is the mother and the 2^nd to the 5^th applicants are her children (“the children”). They are illegal immigrants by staying in Hong Kong without the permission of the Director of Immigration (“the Director”). They lodged non-refoulement claim jointly with the Immigration Department and the Director rejected their application. They appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, their appeals were dismissed.

2. The applicants filed Form 86 on 2 December 2021 for application for leave to apply for judicial review of the Board’s Decision.

3. By affirmation filed on 25 October 2023, the 3^rd applicant, the 4^th applicant and the 5^th applicant, applied to withdraw their joint applications, saying that they want to go back to their country as soon as possible as their problems in their country have been solved.

4. The Court observed that the 1^st applicant did not make an affirmation for her application for withdrawal. Nor did she make an affirmation as the guardian ad litem to withdraw for the 5^th applicant, who is 15 years old, a minor.

5. The Court thus made enquiries with the applicants. The 2^nd applicant informed the Court’s clerk that he will not be withdrawing his application and the 1^st applicant, his mother, had passed away. His father is now being detained in jail for another criminal offence.

6. In order to clarify the issues, the Court called upon the applicants to appear before it. On 17 January 2024, all applicants except the 1^st applicant appeared before the Court. A court interpreter also attended the proceeding to assist the applicants and the Court.

7. Before the Court, the applicants confirmed that the 1^st applicant has passed away and all other applicants except the 2^nd applicant applied to withdraw their applications.

The 1^st, the 3^rd and the 4^th applicants’ applications

8. The 1^st applicant’s application is dismissed for want of prosecution.

9. Insofar as the 3^rd and the 4^th applicants are concerned, they are of age and have the capacity to make their applications and there is nothing outstanding in their applications.

10. In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi[2022] HKCA 471 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.”

11. The 3^rd and the 4^th applicants’ applications are dismissed.

The 5^th applicant’s application

12. Since the 5^th applicant is a minor, he is unable to make his application under Order 80 of the Rules of the High Court (“RHC”). His application is adjourned to a date to be fixed for the Official Solicitor to take steps to make the application on his behalf.

The 2^nd applicant’s application

13. The 2^nd applicant proceeds with his application for leave to judicial review the Board’s Decision dated 10 September 2021 (“the Board’s Decision”), which dismissed his appeal against the Director’s Decision dated 27 March 2019 (“the Director’s Decision”) rejecting his refoulement claim application.

The Director’s Decision

14. The Director assessed the applicants’ applications on the facts of their cases.

15. In January 2018, the 2^nd applicant was approved to enter Hong Kong to attend Asia’s Fashion Jewelry and Accessories Show, Hong Kong International Jewelry Show and to source fashion jewelry products and meet suppliers for business cooperation.. He arrived in Hong Kong on 2 March 2018 and was permitted to stay until 12 March 2018. He did not depart and overstayed since 13 March 2018. He surrendered to the Immigration Department on 28 March 2018, claiming that his passport was lost on 12 March 2018. On 9 April 2018, he first revealed that he wanted to lodge his non-refoulement claim. His claim is on the basis that if refouled, he and his family will be harmed or killed by (a) Mian Javed Lartif (“Mian”), Soukar Ali gondai (“Shoukat”) and his men due to a political dispute and (b) his brothers-in-law Imran and rizwan, due to family problem.

16. In the Director’s Decision, the Director had found contradictory statements and information provided by the family members, which affected the credibility of their evidence on the facts of their cases [16]-[22]. The Director therefore found that their enemies’ intention to severely harm and kill him and his family upon their return to Pakistan was considered to be extremely slim, if not impossible [23]. Also, the Director found that state protection is available [24]-[28] and internal relocation is a viable option open to him and his family [29]-[31].

17. The cause of fear of the family arose from the father of the family, who supported the Pakistan Tehreek-e-Insaf party (“PTT”) was recruited by members of the Pakistan Muslim League (N) party (“PMLN”) to join them, but the father refused. The father left the family to live elsewhere and the enemies had attempted various ways including attempting kidnapping the 5^th applicant in order to get information on whereabouts of the father. Their enemies threatened the family with harm to the children. The family problem is the brothers-in-law kicked the family out of the family house where they had lived together for around 25 years. They reported this matter to police, but the police took no action.

18. The 2^nd applicant appealed against the Director’s Decision to the Board.

The Board’s Decision

19. The Board held a hearing on 21 October 2020 and the applicants, including the 2^nd applicant, attended. The 5^th applicant was legally represented by a duty lawyer at the hearing.

20. Having considered the evidence, the Board, by the Board’s Decision, dismissed the 2^nd applicant’s appeal for the reason that he was unable to establish that there will be real and genuine risk that he will be harmed or killed by his enemies if he returns to Pakistan with his family. Below are the Board’s findings:

“40. In the hearing, AP1 indicated that she will give evidence on behalf of the family, the other Aps would not give evidence on their claims….
53. … … since AP1 refused to relate more information or answer questions about Shoukat, I found her credibility was in doubt. Her evidence was not accepted by me. …
60. Having considered all the evidence of AP1, I am not satisfied that AP1 had established that the unknown people and Shoukat were acting in the official capacity as required in the definition of “torture”.
69. I had found that the Aps had never sustained a level of severe pain and suffering. From the evidence of AP1 as a whole, I find there were barely oral threats inflicting on the Aps. There unknown people had no intention to kill or to inflict seriously bodily harm to the Aps….
70. Having considered the evidence of AP1, I find that the Aps has [sic] failed to establish there are substantial grounds for believing that they would be in danger of being subjected to torture if they returned to India [sic]. Having considered the evidence as a whole I find there is no real chance for the Aps being subjected to torture if they return to India, even if there is, State protection is reasonable [sic] available to the Aps.”

21. Although there are topographical mistakes as to the country of origin, which should be Pakistan instead of India, these mistakes, in my view, do not affect the Board’s Decision as to render it to be arguable on such errors.

22. The 2^nd applicant had filed Form 86 to apply for leave for judicial review of the Board’s Decision.

23. In his affirmation in support of his application, he simply said he disagrees with the Board’s Decision, without any specific ground.

Discussion

24. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).

25. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 2^nd applicant said he would not apply for withdrawal of his application at the moment. He said he may join his family at a later stage.

26. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

27. The 2^nd applicant has raised no valid ground to challenge the Board’s finding of the facts. The 2^nd applicant fails to show that he has any realistic prospect of success in his proposed judicial review. There is no reason that the Court should interfere with the Board’s finding of the facts.

28. The 2^nd applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

29. Accordingly, I refuse to grant leave for the 2^nd applicant to apply for judicial review of the Board’s Decision and I dismiss his application.

DISPOSAL

30. The Court shall make an Order in terms as follows:

(1) the applications of the 1^st, 2^nd, 3^rd and 4^th applicants’ applications be dismissed; and
(2) the 5^th applicant’s application be adjourned to a date to be fixed pending the Official Solicitor acting as the next friend of the 5^th applicant for his application.

Dated the 29^th day of February 2024

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notesfor the Applicants: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicants on 29/2/2024 Kousar Rubina, Arslan Muhammad, Faizan Muhammad, Irfan Komal and Nouman Muhammad Applicants’ ref. no: Nil		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29/2/2024 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 15786-90/19/4/44-48/P3130-34 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 53-7/19 (formerly RBCZ 10014-8/19)[T1S130] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

	consideration of documents only; or
	consideration of documents and 1^st Applicant being absent and 2^nd to 5^thApplicants being present in open court;