BK v Director of Immigration and Another; CH v Director of Immigration

Judgement Year:  2010
Citation:  HCAL 24/2009 and HCAL 31/2009

The applicants came to Hong Kong to seek protection from persecution and torture in his country. They did not declare this intention on arrival in Hong Kong.

BK attempted to lodge a torture claim before his leave to remain expired. The Director of Immigration (the 1st respondent) denies that BK lodged a claim, saying that BK only made an enquiry. BK was told to apply for an extension of stay, which he did. It was rejected on the same day. Later, BK lodged an objection with the Chief Secretary of the Administration. The Chief Executive in Council (the 2nd respondent), dismissed the objection without giving reasons. About two years later, BK was arrested for overstaying, transferred to the Immigration Department and released on recognizance. His torture claim was rejected soon after.

CH attempted to apply for an extension of stay at the Immigration Department on the last day of his leave to remain. His application was refused on the same day, whereupon he was given a sealed letter to hand to the immigration checkpoint upon his departure from Hong Kong. Unbeknownst to CH at the time, the letter stated that the Director had no objection to CH’s departure ‘by an means… for any destination’. CH was subsequently arrested for overstaying, transferred to the Immigration Department and released on recognizance. At the time of judgment, CH’s torture claim was pending.

The applicants sought a judicial review of the Director’s decisions not to process their torture claims until after their permissions to stay expired, as well as his subsequent decisions not to grant extensions of stay. Additionally, BK sought to challenge the Chief Executive in Council’s decision and his failure to give reasons for the decision.

Andrew Cheung J held that the Convention’s only aim was to prevent torture. Beyond that, it could not regulate State Parties’ immigration policies and practices. As long as the torture claimant was not removed or deported to the place which he (or she) alleged he would face torture until an unfavourable determination was made at the end of the screening process, the State Party was free to determine for itself when it should start processing or entertaining a claim. In Hong Kong’s case, since the Director could not remove a person until that person became an overstayer, that person did not face the immediate risk of removal.

Furthermore, whether a claimant was made an overstayer, and hence a lawbreaker, as a result of the Director’s policy fell outside the scope of the Convention. Given that the Director enjoyed a high degree of discretion in matters relating to permission to land and stay and extensions of such permission, the courts must be slow to interfere. Andrew Cheung J also held, however, that the Convention stipulated three provisos: that the torture claimant is not deported until an unfavourable determination is made after a screening process that meets high standards of fairness; that the legal and practical consequences of becoming an overstayer do not deter the making or maintaining of a torture claim; and that the high standards of fairness are not compromised.

Andrew Cheung J also dismissed the argument that the Chief Executive in Council had to give reasons for his decision.

(The applicants subsequently appealed to the Court of Appeal: see our summary of the judgment in CACV 59-60/2010.)