RESHAM v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1332/2018

[2020] HKCFI 2125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1332 of 2018

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) which governs the making of non-refoulement claims and the procedures for dealing with them, has for efficient administrative purpose placed certain restrictions or limitation on them, including section 37ZF which treats such claim as withdrawn and cannot be re-opened upon the claimant’s departure from Hong Kong as follows:

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determination or a substantiated claim) made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant (for whatever reason) leaves Hong Kong.

(2) A torture claim that is treated as withdrawn under subsection (1) must not be re-opened.

(3)     If a person leaves Hong Kong after the person has given notice to withdraw a torture claim under section 37ZE(1), the claim must be treated as having been withdrawn under subsection (1) and must not be re-opened.”

2.  Whereupon such a claimant may only make a subsequent claim under section 37ZO of the Ordinance as follows:

“ (1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”   

3.  Furthermore, the claimant aggrieved by a decision made under subsection (5) may not appeal to the Torture Claims Appeal Board (“the Board”), as it is not within the purview under section 37ZR of the Ordinance which allows an appeal to the Board in respect of only the following decisions:

“ A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—

(a) section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);

(b) section 37ZI(1)(b) (decision rejecting a torture claim); or

(c) section 37ZL(1) (revocation decision made by an immigration officer).”    

4.  In the present case, the Applicant is a 33-year-old national of India who first raised a torture claim on 15 October 2010 under Part VIIC of the Immigration Ordinance, Cap 115 on the basis that if he returned to India he would be harmed or killed by the family of the girlfriend Neelam of his good friend Vinod as her family were against their relationship and had somehow blamed the Applicant for their relationship.      

5.  By a Notice of Decision dated 24 June 2013 the Director of Immigration (“the Director”) rejected his torture claim upon finding that his claimed risk of harm from Neelam’s family arose from a private personal dispute between his friend and the girlfriend’s family without any state/official involvement and hence did not amount to torture under Part VIIC of the Ordinance, that in any event with state or police protection available to the Applicant as well as reasonable internal relocation alternatives within India with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas away from his home district in large cities where it would be difficult if not impossible for Neelam’s family to locate him.

6.  The Applicant did not then lodge any appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision when the 14-day period required under section 37ZS of the Ordinance for him to do so expired on 10 July 2013.

7.  Instead the Applicant on 9 August 2013 by a written representation to the Immigration Department sought non-refoulement protection on the basis that he would be subjected to torture or cruel, inhuman or degrading treatment or punishment on the same basis upon his refoulement to India.

8.  Upon the implementation of the Unified Screening Mechanism (“USM”) by the administrative in March 2014 for screening non-refoulement claims under all the applicable grounds, the Applicant was informed by the Immigration Department that his non-refoulement claim would be assessed under USM except for torture risk which had earlier already been dealt with, but it would include risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 risk”), risk of his absolute or non-derogable rights under Article 2 of HKBOR (“BOR 2 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

9.  However, before his non-refoulement claim could be determined, the Applicant on 30 April 2015 wrote to the Immigration Department to withdraw all his non-refoulement claim under USM, and accordingly on 8 July 2015 he was removed to India.

10.  Sometime in January 2016 the Applicant sneaked back into Hong Kong, and upon his arrest by the police in March 2017 and was referred to the Immigration Department, he again raised a non-refoulement claim on the basis that upon his return to India he was arrested by the police as Neelam’s family had made a false charge against him, and it was only after his family had paid bribe that he managed to make his escape eventually to Hong Kong, and as he feared of being harmed or killed by Neelam’s family or by the local police whom he suspected were under their influence, he therefore raised his non-refoulement claim again.

11.  Pursuant to section 37ZO of the Ordinance, the Director treated the Applicant’s claim as a subsequent claim, and by a letter dated 27 June 2017 required him to provide evidence in writing to show that there had been a significant change of circumstances since the withdrawal of his previous claim which when taken together with the material previously submitted for his previous claim would give his subsequent claim a realistic prospect of success under subsection (2) of the Ordinance.

12.  On 8 July 2017 the Applicant replied in writing and provided further information of being detained by the police in his home district and of being beaten and abused during his detention for three days until he managed to make his escape after bribe had been paid by his family to one of the guards, and that thereafter he departed India for Hong Kong.  An interview was also conducted with the Applicant by an immigration officer for further clarification of his claim.      

13.  By a Notice of Decision dated 7 September 2017, the Director rejected the Applicant’s subsequent claim upon finding that his claimed change of circumstances when taken together with the material previously submitted in support of his previous claim would not give his subsequent claim a realistic prospect of success, that any alleged involvement of the police was confined to the local station in his home district without any evidence of state involvement that state protection would be available to the Applicant upon his return to India, and that with reasonable internal relocation available for him to move safely to other areas away from his home district in large cities such as New Delhi or Mumbai without any risk of being located by Neelam’s family or the local police that there was no realistic prospect of success regarding his claim that it concluded that he may not make a subsequent claim.

14.  On 21 May 2018 the Applicant lodged an appeal to the Board which was received on 25 May 2018 against the Director’s decision, but as he was then clearly out of time of the 14-day period to appeal required by section 37ZS of the Ordinance, the Board therefore proceeded to decide, as a preliminary decision without a hearing, whether to allow his late filing under section 37ZT(2) of the Ordinance.       

15.  By a decision dated 3 October 2018 the Board refused to allow the late filing of the Applicant’s Notice of Appeal based on the following findings and reasons:

(a)   that the Board has no jurisdiction to deal with his appeal against the Director’s Decision of 7 September 2017 regarding his subsequent claim which is not within the purview of section 37ZR of the Ordinance;

(b)   as regard the Director’s earlier decision of 24 June 2013 which must be appealed within 14 days under section 37ZS of the Ordinance, and which would then put the last day for him to do so to 10 July 2013, and hence the Applicant would be almost 5 years out of time with his appeal which was both serious and significant;

(c)   that his explanation given in section 5 of his Notice of Appeal for his delay that he was then in prison in Tai Lam without assistance was obviously referring to the Director’s later decision regarding his subsequent claim which is not within the purview of the Board, and that as regard the Director’s early decision, there was no explanation at all from him for his such serious delay;

(d)   that he was then legally represented by Duty Lawyer Service and must have been advised on the situation in relation to the torture claim and the consequence of withdrawal of his non-refoulement claim when he applied for its withdrawal, and upon his subsequent removal from Hong Kong, such claim cannot be re-opened under section 37ZE(3) of the Ordinance, and the same would apply to any possible appeal against the early decision regarding his torture claim.      

16.  On 9 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision which was as noted above not yet delivered then, and perhaps therefore there was no ground for seeking relief given in his Form or in his supporting affirmation of the same date when he merely repeated his claim that his life would still be in danger in his home country.  As such and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.  

17.  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.

18.  In the Applicant’s case, as I have found above that there is no reasonably arguable basis to challenge the finding of the Board, but even if I were to treat his application as one for judicial review of the Director’s decision regarding his subsequent claim instead of the Board’s decision, the Applicant would again be seriously out of time with such application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

19.  As the last day of the three-month period for him to file his Form 86 regarding the Director’s Decision dated 7 September 2017 fell on 7 December 2017, the Applicant would be late by more than 7 months with such 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.

20.  In the Applicant’s case, a delay of 7 months must be regarded as substantial and excessive, for which the Applicant did not provide any explanation, and as for the merits, if any, of his intended application, as also noted he did not put forward any proper ground for his intended challenge either.     

21.  On the basis of the additional material and information submitted by the Applicant for his subsequent claim, the Director was entitled to find, and correctly in my judgment, that his claimed ill-treatment by the local police during his arrest arose only from a false charge brought by Neelam’s family against him which was itself a private personal dispute between them, and in the absence of any evidence that he was still being pursued by the police prior to his departure from India or of any state or official involvement in the dispute between him and Neelam’s family, the Director was entitled to and correctly found both state protection and reasonable internal relocation within India available to the Applicant upon his return to India to negate any such risk in his subsequent claim, and in the absence of any error of law or procedural unfairness in his process before the Director or in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Director either.        

22.  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 and assessment of the Applicant’s claim.

23.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of either the decision of the Director or the Board, and I accordingly refuse 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