MANPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2178/2019

[2021] HKCFI 3318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2178 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a national of India who raised a torture claim in 2013 while in Hong Kong on the basis that his life would be in danger if returned to India.  After his torture claim was rejected by the Director of Immigration in August 2016, he did not lodge any appeal/petition against the decision.   

2.  While being detained at the Castle Peak Bay Immigration Centre (“CIC”), the Applicant sought non-refoulement protection under the remaining applicable grounds, for which he was given a briefing on 22 September 2016 by an immigration officer together with a copy of Notice to Persons making a Non-refoulement Claim and a blank Supplementary Claim Form (“SCF”) with instructions to complete and return it within 28 days to the Immigration Department as required by Section 37Y(2) of the Immigration Ordinance (“Ordinance”).  His case was on the same day also referred to the Duty Lawyer Service (“DLS”) for legal representation.

3.  On 26 September 2016 DLS confirmed in writing to the Immigration Department that the Applicant had been given legal representation for his non-refoulement claim.  Thereafter the Applicant was released on recognizance pending the determination of his claim.

4.  By a letter dated 13 October 2016 the Director reminded DLS that the Applicant should return his completed SCF by 20 October 2016 or else his non-refoulement claim would be treated as withdrawn under Section 37ZG(1) of the Ordinance.

5.  On 17 October 2016 DLS informed the Director that they had no further instruction to act for the Applicant in his claim.  On the following day on 18 October 2016 the Director in writing to his then reported address to remind the Applicant to return his completed SCF by 20 October 2016.

6.  As no completed SCF had been received from the Applicant, the Director by a letter dated 25 October 2016 to his last reported address informed him that his non-refoulement claim had since been treated as withdrawn as stipulated under Section 37ZG(1) of the Ordinance.

7.  Some eight months later on 23 and 26 June 2017 the Applicant in writing requested the Director to allow him to re-open his claim as his life would still be in danger in India, and for which the Director on 29 June 2017 required him to provide information and evidence in writing to explain his previous failure to return a completed SCF within the required time, and on 12 July 2017 he attended an interview before an immigration officer regarding his request to re-open his claim.      

8.  By a Notice of Decision dated 14 July 2017 the Director refused to allow the Applicant to re-open his claim upon finding that that he had failed to demonstrate that his failure to return a completed SCF within the required period or at all was due to circumstances beyond his control.

9.  On 20 July 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to deal with the appeal in the absence of the Applicant and on paper, and on 24 November 2017 it dismissed his appeal and also confirmed the Director’s decision upon agreeing with the Director that the Applicant was well aware of his duty and obligation to return a completed SCF within the required period while on legal representation from DLS as well as the consequences of his failure to do so, and that thereafter he had failed to provide sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond his control that he had not been able to do so.

10.  On 31 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date.

11.  By then the Applicant was also seriously out of time with his application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 24 February 2018, the Applicant was therefore 17 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 17 months must be considered as extremely substantial and excessive, for which he never provided any explanation in his Form or supporting affirmation, and while it is noted that at the time of the filing of his Form 86 the Applicant was again being detained at CIC, and even assuming that it might have somehow caused him to be unable to file his application within the required period, it could not in my judgment be accepted as a good reason for his such serious delay.

14.  As for the merits, if any, of his intended application, the Applicant as noted above has not put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by eth Applicant, I do not find any merits in his intended application either.    

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.     

16.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration of the Applicant’s request to re-open his claim.

17.  Furthermore, the Applicant recently on 29 September 2021 wrote to the Court to request to dismiss his leave application as he wants to go back to his home country.

18.  In the premises, as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and given the Applicant’s latest confirmation of his wish to return to his home country, I accede to his request and accordingly dismiss his leave application.

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

Form CALL-1