RE ALI MAJID

HCAL 1253/2018

[2021] HKCFI 2992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1253 OF 2018

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director requested him to submit the Torture Claim Form (“TCF”).  He failed to do so.  His claim was deemed to have been withdrawn.  He applied to re-open his claim.  But he was unable to give satisfactory reasons for his non-compliance.  The Director refused to re-open his claim. He appealed to the Torture Claims Appeal Board (the “Board”).  The Board dismissed his appeal (the “Board’s Decision”).

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision. 

3.  By Order dated 8 March 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons on 30 September 2021 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said that he was not aware of the time limit for appeal. He considers that the Court’s decision is unfair without giving him an opportunity to clarify his case and situation in his country. 

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

7.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

8.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

9.  The lodged non-refoulement claim with the Immigration Department. Under the Ordinance, he has to submit the Torture Claim Form, in which he has to set out the facts in support of his claim. If he fails to do so without good reason, his claim must be treated as withdrawn. He may apply to the Director to re-open his claim if he can give satisfactory reasons for his non-compliance. However, despite repeated requests by the immigration officer, he failed to submit the Torture Claim Form. Nor was he able to give satisfactory explanation for his failure to do so. As a result, the Director refused to allow him to re-open his claim (the “Director’s Decision”). He appealed to the Board against the Director’s Decision. I shall set out the chronology of the events upon which the Director had made his Decision:

(1)  On 27 May 2013, the immigration officer requested, in writing, the applicant to submit his TCF. The applicant was legally represented under the Duty Lawyer Scheme (“DLS”).

(2)  On 21 June 2013, the DLS informed the Director that they had no instructions to act for the applicant. The immigration officer was unable to have contact with him.

(3)  By a written notice dated 25 June 2013, the Director informed the applicant that his application was treated as withdrawn.

(4)  On 20 December 2013, the Director received a letter from the applicant dated 14 December 2013 asking the Director to close his torture claim and he applied for BOR 3 risk claim.

(5)  Two brief sessions were arranged for him on 8 September and 29 September 2014. On both sessions, the applicant failed to attend without prior notice.

(6)  On 7 January 2015, the applicant was located at Tai Lam Correctional Institution. The applicant was given the Supplementary Claim Form (“SCF”) and he was legally represented under the DLS.

(7)  On 2 March 2015, his lawyer asked for an extension of time to submit the SCF and time was extended to 17 March 2015.

(8)  On 17 March 2015, the DLS informed the Director that they could not act for him because they could not obtain instructions from the applicant.

(9)  By a letter dated 25 March 2015 to the applicant, his application under BOR 3 was treated as withdrawn for his failure to submit the SCF.

(10)  On 15 August 2015, the applicant applied for re-opening his non-refoulement claim. By three separate letters respectively dated 12 August, 11 September and 17 September 2015, the Director required the applicant to provide information why he did not return the completed SCF within the time and other information such as and special circumstances by reason of which it would be unjust not to re-open his claim. The applicant did not provide the information required.

(11)  The applicant was interviewed on 17 September 2015. He told the immigration officer that he had been detained by police and he was reluctant to disclose other information other than that he could not return the SCF because he forgot to do so on the first occasion and on the second occasion, he was under the influence of drug.

(12)  His request for re-opening his non-refoulement claim was allowed. A brief session was arranged for him on 27 October 2015. He asked for a postponement. The briefing session was re-scheduled to 18 November 2015. However, he did not turn up on that day and he could not be contacted since then.

(13)  It was discovered that he was detained in prison since 17 March 2016. He was located on 15 July 2016. A written notice dated 5 August 2016 was served on him informing him that his application for re-opening of his non-refoulement claim was treated as withdrawn because he failed to submit the SCF.

(14)  The Director then received two letters from the lawyer of the applicant respectively dated 15 August 2016 and 18 August 2016 requesting for extension of time for submission of the SCF. The deadline was extended to 9 September 2016.

(15)  On 8 September 2016, the DLS informed the Director that they could not act for the applicant as no further instruction was received from him.

(16)  On 22 September 2016, the Director served a letter on the applicant that his non-refoulement claim on applicable grounds other than risk of torture had been treated as withdrawn on 10 September 2016.

(17)  On 14 June 2017, the applicant wrote to the Director to request for re-opening of his non-refoulement claim.

(18)  By letter dated 26 June 2017, the Director asked the applicant to provide explanation as to why he was unable to return the completed SCF and other information to support his request.

(19)  The applicant made written submissions dated 1 and 19 July 2017, in which he said that he did not return the completed SCF because he was struggling for his living and accommodation and he was addicted to drug and alcohol and his property was stolen. He intended to obtain some further documents from his friend in Yuen Long. But he could not contact his friend. The documents would tell that his enemies in Pakistan were more powerful and they caused trouble to his family. Finally, he denied having been informed of the Director’s notice treating his non-refoulement claim as withdrawn.

(20)  Having considered the applicant’s submissions, the Director finally refused to re-open his non-refoulement claim, which was treated as withdrawn on 10 September 2016.

10.  The Board had considered his appeal and dismissed it for the reasons, which I shall recite below.

“23. His conduct was outrageous. The Immigration Department should not have entertained all his applications. It is an abuse of the process and a waste of manpower from the Immigration Department and the DLS. ,… …

24. The Petitioner had already been given indulgence by the Immigration Department by reasons of his own admission that he was involved in crime and drug and being an alcoholic. There is no reason why the Immigration Department should give him further indulgence on those grounds.

25. I am at a loss as to why the Immigration Department could tolerate and gave him all the chances to apply for re-opening of his claim. He should have been repatriated much earlier.

25. As reasons aforesaid, this petition is dismissed.”

11.  The Court, having examined the Board’s decision, considered that he had not stated under what grounds that the Board was wrong in reaching it decisions. As the applicant has not even submitted his statement of fact in support of his claim, there is nothing for the Director or the Board to consider the merit of his claim. Under those circumstances, it is proper for the Board to come to its conclusion, dismissing his appeal against the Director’s Decision.

12.  It can be seen that his grounds in support of this application are irrelevant as he has not even set out his facts in support of his claim.

13.  The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error. He is therefore unable to show that he has any reasonable prospect of success in his intended appeal.

14.  In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.