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Pa v Director Of Immigration

Judgment Cited authorities 20 Cited in Precedent Map Related
Vincent
Judgment Date06 January 2011
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL75/2010
CourtHigh Court (Hong Kong)
HCAL10/2010 MA v. DIRECTOR OF IMMIGRATION

HCAL 10/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 10 OF 2010

____________

BETWEEN

MA Applicant
and
DIRECTOR OF IMMIGRATION Respondent

____________

AND

HCAL 73/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 73 OF 2010

____________

BETWEEN

GA Applicant
and
DIRECTOR OF IMMIGRATION Respondent

____________

AND

HCAL 75/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 75 OF 2010

____________

BETWEEN

PA Applicant
and
DIRECTOR OF IMMIGRATION Respondent

____________

AND

HCAL 81/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 81 OF 2010

____________

BETWEEN

FI Applicant
and
DIRECTOR OF IMMIGRATION Respondent

____________

AND

HCAL 83/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 83 OF 2010

____________

BETWEEN

JA Applicant
and
DIRECTOR OF IMMIGRATION Respondent

____________

(Heard Together)

Before: Hon Andrew Cheung J in Court

Dates of Hearing: 24-26 November 2010

Date of Judgment: 6 January 2011

_______________

J U D G M E N T

_______________

Facts

1. These 5 applications for judicial review, which have been heard together, concern 4 mandated refugees and 1 screened-in torture claimant. They raise some common issues. Stated generally, the main issue raised concerns the circumstances, if any, under which a mandated refugees or a screened-in torture claimants, who has been stranded in Hong Kong for a prolonged period of time and has little prospect of resettlement (or departure) in the immediately foreseeable future, may be permitted to take up available employment in Hong Kong, pending resettlement (or departure).

2. MA is a Pakistani national. He is in his 30s. He was involved in regional politics in Pakistan, where many had been killed in sectarian-related violence. In 2001, MA received information that he and his family were targeted by terrorist extremist groups due to his political involvement. He fled Pakistan in October 2001 and came to Hong Kong as a visitor on 11 October 2001. On the same day, MA sought asylum and applied for protection under the Convention relating to the Status of Refugees 1951 with the UNHCR[1] Office in Hong Kong. MA’s permission to stay was extended on several occasions but it eventually expired on 25 January 2002. He went underground shortly thereafter. On 8 June 2004, he was officially mandated by the UNHCR as a refugee. He surrendered himself to the Immigration Department on 18 June 2004 and was released on recognizance in lieu of detention, pursuant to section 36 of the Immigration Ordinance (Cap 115). As such, MA could not work in Hong Kong whilst awaiting overseas resettlement to be arranged by the UNHCR. MA, single and alone in Hong Kong, survived on “assistance in kind” offered by the Government, as a form of “tide-over support” provided on humanitarian grounds, and on other assistance provided by religious and charitable organisations.

3. By a letter dated 20 October 2009, MA through solicitors wrote to the Director of Immigration, pointing out that according to the UNHCR, previous resettlement efforts had been in vain and the prospect of resettlement was remote. The letter went on to say that MA was unable to return to his home country, nor could he be sent elsewhere. He would remain in Hong Kong indefinitely. In those circumstances, the letter maintained that the only practical solution, as “the appropriate durable solution” for MA, was for him to be allowed to live and work in Hong Kong, as a resident. The Director was therefore asked to exercise his power to grant MA permission to remain in Hong Kong, on such conditions as he might consider appropriate.

4. The request was rejected by the Director. In his letter of reply dated 2 November 2009, the Director pointed out that the Refugees Convention 1951 was not applicable to Hong Kong; the Government had a firm policy of not granting asylum and did not have any obligation to admit individuals seeking refugee status under the Convention. The letter went on to point out that removal actions against mandated refugees might, upon the exercise of the Director’s discretion on a case-by-case basis, be temporarily withheld pending arrangements for their resettlement elsewhere by the UNHCR. Finally, the letter stated categorically that the Administration owed no obligation to mandated refugees arising from their refugee status.

5. GA, of Burundi nationality, is in his mid-40s. He was involved in political activities in his home country. In June 2004, armed soldiers raided his house and his two elder sons were killed. He fled the country and eventually arrived in Hong Kong on 26 June 2004. He sought asylum shortly after arrival. On 5 July 2004, he was recognised by the UNHCR Office in Hong Kong as a mandated refugee. He was released from detention on recognizance. However, attempts by the UNHCR Hong Kong Office to resettle him elsewhere had not been successful. GA had lost contact with his wife and remaining children. Alone in Hong Kong, he could not work. On 20 October 2009, through the same firm of solicitors (Barnes & Daly) who represented also MA, GA wrote to the Director asking for permission to stay in Hong Kong so as to allow him to live and work here as a resident. The contents of the letter were similar to that written on behalf of MA. By the same letter of reply dated 2 November 2009 already described, the Director refused both the request of MA and that of GA.

6. PA, a Sri Lankan national, is in his mid 40s. He was involved with the Tamil Tigers. Because of his involvement, he was subjected to arrest, detention and torture on more than one occasion whenever there was any significant Tamil action against the government. On 24 December 2000, he arrived in Hong Kong as a visitor. On 4 January 2001, he approached the Immigration Department for an extension of stay on the ground of fear of torture in Sri Lanka. In April 2001, he was joined by his wife and three children in Hong Kong, who were all permitted to remain as visitors. Since October 2002, PA together with his family were placed on recognizance, after the expiry of their permissions to stay. At one stage, a removal order was issued against him, but it was withdrawn one year later (in 2004). He was screened in by the Director as a torture claimant under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) on 14 May 2008. He was, as at the time of hearing, the first successful screened-in torture claimant. PA has not been permitted to work in Hong Kong since his arrival. By a letter dated 28 January 2010, PA through his solicitors wrote to the Director of Immigration, pointing out that for an unforeseeable and indefinite period of time, the prospect of returning PA to his country or to resettle him in a safe third country was remote, and PA and his family would remain in Hong Kong indefinitely. The solicitors maintained that the only practical solution available to the Director was to allow PA to live and work in Hong Kong with a permission to remain. The Director was asked to exercise his discretion accordingly. Furthermore, the Director was asked to clarify his policy on “post-screening management” of successful claimants, whether they would be allowed to work in Hong Kong, and under what circumstances they would be able to exercise such a right. Up to the time of hearing, no substantive reply had been given to this letter of PA. According to the evidence filed on behalf of the Director in these proceedings, as of 15 October 2010, PA’s request was still “under consideration”.

7. According to the expert evidence filed on behalf of the applicants in these proceedings (affirmation of Dr Susan Mistler dated 9 November 2010), PA is suffering from “a severe major depression”, and according to Dr Mistler’s opinion, “his inability to work and provide for his family is a major contributing factor to the cause and maintenance of his mental illness” (para 45).

8. FI is a Sri Lankan national. He is now in his late 30s, single. He was heavily involved in politics in his home country, and as a result, he was a target of political assassination. In July 2005, an attempt on his life failed. He left Sri Lanka for Hong Kong in September the same year. On 19 September 2005, he arrived in Hong Kong and contacted the UNHCR Office in the following month. His permission to stay expired on 4 October 2005 and thereafter he became an overstayer in Hong Kong. On 6 December 2006, FI was mandated by the UNHCR as a refugee and granted protection in Hong Kong pending a durable solution. He was arrested by the police on 10 December 2006 for overstaying. Following an interview with the Immigration Department, he was released on recognizance on 12 December 2006. Efforts by the UNHCR to resettle him in a third country have thus far been futile. According to expert evidence filed shortly before the substantive hearing, as a result of the assassination attempt he experienced in Sri Lanka, FI had a series of psychiatric complications. He is suffering from post-traumatic stress disorder that has resulted...

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