SUDIMAH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 590/2018

[2019] HKCFI 603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 590 of 2018

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 the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  This is the applicant’s application for leave to apply for judicial review of the decision of the Torture Claim Appeal Board (“the Board”) in dismissing her appeal/petition against the refusal of the Director of Immigration (“the Director”) to re-open her non-refoulement claim due to her failure to return her Supplementary Claim Form (“SCF”) within the required time.  The applicant’s grounds are essentially that it was procedurally unfair and unreasonable that she was not given the opportunity to make her claim or to explain her failure to return her SCF.

2.  Part VIIC of the Immigration Ordinance, Cap 115 has made provisions for procedures relating to the making of such claim, where section 37Y provides for the submission of torture claim form as follows:

“ (1)  A claimant must, on written request by an immigration officer—

(a)  complete a torture claim form, and the completed form must—

(i)  state the grounds of the claim and the facts supporting the claim; and

(ii)  include such other information as is required by the form; and

(b)  return the torture claim form so completed to an immigration officer at an address specified in the form, together with all documents supporting the claim that are readily available to the claimant when the form is returned.

(2)  The claimant must return the completed torture claim form in accordance with subsection (1)(b)—

(a)  within the period of 28 days after a written request under subsection (1) is given to the claimant; or

(b)  within any further period that an immigration officer allows under subsection (3).

(3)  An immigration officer may—

(a)  on an application made by a claimant in writing before the expiry of a period for returning a completed torture claim form in request of the claimant’s torture claim; and

(b)  on being satisfied that, by reason of special circumstances, it would be unjust not to allow a further period for the claimant to return the completed form,

allow a further period that the immigration officer considers appropriate for the claimant to return the completed form.

(4)  The torture claim form is to be in a form specified by the Director.”

3.  Section 37ZA also sets out the duties of a claimant in making his or her claim as follows:

“ (1)  It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—

(a)  provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;

(b)  comply with every requirement, procedure and condition (including any time limit)—

(i)  prescribed by this Part; or

(ii)  required or specified by any person under this Part.

(2)  A claimant must provide to the Director and (on an appeal) to the Appeal Board—

(a)  the claimant’s residential address in Hong Kong; and

(b)  the claimant’s correspondence address in Hong Kong (if different from the residential address),

and must notify the Director and (on an appeal) the Appeal Board in writing of any change in either of those addresses as soon as practicable after the change.”

4.  As for the failure of a claimant to return the completed torture claim form, section 37ZG provides that:

“ (1)  A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2)  An immigration officer must give the person who made the claim a written notice stating that—

(a)  the torture claim is treated as withdrawn under subsection (1); and

(b)  the person may apply to re-open the claim under subsection (3).

(3)  A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required under section 37Y(2).

(4)  If an immigration officer decides to re-open a person’s torture claim under subsection (3), the immigration officer must, by written notice, inform the person—

(a)  of the decision; and

(b)  that the person is required to return a completed torture claim form in respect of the claim to an immigration officer at an address specified in the form within 14 days after the notice is given.

(5)  If an immigration officer decides not to re-open the person’s torture claim, the immigration officer must, by written notice, inform the person of—

(a)  the decision;

(b)  the reasons for the decision; and

(c)  the person’s right under section 37ZR to appeal against the decision.

(6)  If a torture claim is re-opened under subsection (3), subject to subsections (7) and (8), processing of the claim is to continue in accordance with this Part as if the claim had not been withdrawn.

(7)  Section 37Y(2) applies to the torture claim as if for paragraph (a) of that section there were substituted—

‘ (a)  within the period of 14 days after the notice under section 37ZG(4) is given to the claimant; or’.

(8)  If a completed torture claim form in respect of the torture claim is not returned in accordance with section 37Y(2) as read with subsection (7), the claim is to be treated as withdrawn under subsection (1)—

(a)  on the expiry of the 14-day period; or

(b)  if a further period is allowed under section 37Y(3), on the expiry of the further period.”

5.  Before proceeding to consider the applicant’s proposed grounds for her intended challenge, it would therefore be relevant to first set out the chronological events of the process of her claim by the Immigration Department leading up to the Board’s decision in order that her complaints can properly be considered within the contest of those statutory requirements as stated above.  

6.  The applicant is a 41-year-old national of Indonesia who had previously worked as a foreign domestic helper in Hong Kong lasted arrived here on 4 August 2006 with permission to remain as a visitor up to 3 September 2006 when she did not depart and instead overstayed until she was arrested by police on 29 June 2009.  After she was referred to the Immigration Department (“the Department”) for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her creditor for failing to repay her loan.  She was then released on recognizance pending the determination of her claim.

7.  On 2 May 2012, as part of the screening process of her claim, the applicant was served by the Department with a ‘Notice to Person Making a Claim under Article 3 of the Convention’ (“the Notice”) with a blank ‘Questionnaire for Persons Who Have Made Claims Under Article 3 of the Convention’ (“the Questionnaire”) for her to complete and return to the Department within 28 days on or before 30 May 2012, with a warning that if she failed or refused to return the Questionnaire without reasonable excuse, her claim would be determined on the basis of available information and may be rejected in the absence of sufficient materials to substantiate the claim.

8.  By 30 May 2012 the applicant had still not returned the Questionnaire, and the Director therefore on 31 May 2012 wrote to the Duty Lawyer Service (“DLS”) whose legal service had been accepted by the applicant to request for the completion and return of her Questionnaire.

9.  By a letter dated 7 June 2012 DLS informed the Director that they were unable to contact the applicant and therefore had no further instruction to act for her.

10.  By two letters dated respectively 12 June 2012 and 20 June 2012 to her then last known address the Director again requested the applicant to return her Questionnaire and warned her of the consequences of her failure to do so.  At the same time the Department had also attempted to contact the applicant through the telephone number provided by her but found that her phone service had been terminated.

11.  By a Notice of Decision dated 19 July 2012 the Director found in the absence of the Questionnaire or further information from the applicant that the available materials did not reveal that she had been subjected to any torture or act of violence in Indonesia, whether physical or mental, within the meaning of torture under Article 1 of the Convention, and concluded that she had failed to establish her claim under the Convention and rejected her torture claim accordingly. 

12.  Copies of that decision in both English and Indonesian were sent to the applicant on the same date at her last known address and were not returned undelivered, and at about the same time the applicant also failed to report to her recognizance and never contacted the Department again until some four years later on 19 August 2016 when she wrote to the Department and raised her non-refoulement claim for protection, and was again released on her own recognizance.

13.  By a written signification dated 30 September 2016 of her intention to seek non-refoulement claim, the applicant acknowledged receipt of the Director’s earlier decision, and explained that she did not approach the Department or report to her recognizance because she wanted to avoid further detention.  She then proceeded to give her reasons for seeking non-refoulement protection.

14.  By a letter dated 11 October 2016 the Director informed the applicant that her non-refoulement claim would be considered pursuant to the Unified Screening Mechanism (“USM”) other than her previously rejected torture claim, and for which she would be contacted in due course to attend a briefing session at the Department during which she would be given inter alia a Supplementary Claim Form (“SCF”) in which she was required to complete with all the information about her non-refoulement claim within the stipulated period for the purpose of assessing her claim.

15.  On 28 November 2016 the applicant attended the briefing session and was handed a SCF with a letter of the same date informing her that the SCF should be completed and returned with all supporting documents within 28 days to the Department, for which the applicant signed an Acknowledgement of Receipt of the SCF and of her understanding of the consequences of her failure to do so including that her claim would be treated as withdrawn, and of the requirement to inform the Department of any change of her contact telephone number, residential or correspondence address as soon as possible after such change.  The Acknowledgment also recorded the name and signature of an interpreter confirming that the applicant had been interpreted the contents before she signed on it.

16.  On the same date the Director also informed DLS that the applicant’s non-refoulement claim was being processed by the Department and that a screening interview had been scheduled on 6 February 2017 accordingly.

17.  On 29 November 2016 DLS confirmed to the Director of their instruction to act for the applicant in her claim.

18.  On 19 December 2016 the Director reminded DLS that the applicant was required to complete and return her NCF on or before 16 January 2017 so that the scheduled screening interview could proceed without delay.

19.  On 3 January 2017 DLS informed the Director that they had no further instructions to represent the applicant.  The Director was given to understand that it was because DLS were unable to contact the applicant.

20.  On 6 January 2017 the Director reminded the applicant to return her NCF on or before 16 January 2017 and asked her to contact the Department in case she needed any assistance.

21.  On 18 January 2017 the Director informed the applicant that due to her failure to return her completed NCF, her non-refoulement claim was treated as having been withdrawn, and if she wished to re-open her claim, she should provide sufficient evidence in writing that she had not been able to return her completed NCF due to circumstances beyond her control.

22.  On 23 January 2017 the applicant informed the Director that she wanted to re-open her non-refoulement claim.

23.  On 27 January 2017 the Director requested the applicant to submit further information and evidence in support of her request for re-opening her claim on or before 3 February 2017, failing which that her request would be assessed based on the available information and may be rejected if no sufficient evidence to justify re-opening her claim.

24.  On 7 February 2017 the applicant informed the Director that she had earlier lost her mobile phone and therefore could not receive any calls from the Department, and again requested for the re-opening of her claim. 

25.  By a Notice of Decision dated 8 February 2017 the Director found that the applicant had not provided sufficient evidence to his satisfaction that her failure to return her completed SCF within the time limit was due to circumstances beyond her control, and refused her request to re-open her claim.

26.  On 20 February 2017 the applicant filed an appeal to the Board against the Director’s decision, and for which she attended an oral hearing on 8 February 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 28 March 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

27.  In its decision the Board was not satisfied that the applicant’s failure to return the completed SCF was due to circumstances beyond her control for the following stated reasons:

“ 7.  The reasons provided by the Appellant on the appeal form for why she did not return the form within the time allowed were that she is not well-educated and does not speak English; that she lost her mobile phone and failed to provide the Department with her new number; and that her duty lawyer did not approach her or try to contact her or help her to complete the form.

8.  At the hearing before the Board on 8 February 2018, the Appellant said that she remembered attending the briefing session and being handed the form by the immigration officer on 28 November 2016. She also remembered being referred to the Duty Lawyer Service (‘DLS’).

9.  Contrary to the statement on the appeal form, the Appellant said that she was given a date and time for an appointment with DLS but then lost her mobile phone. When I informed her that DLS had advised the Department they had no instructions from her, she said that she contacted DLS and was told by them that they had tried to contact her and sent letters, but she did not respond. It was not clear when this happened. She said that DLS advised her to contact the Department directly, which indicates this was after the deemed withdrawal of her claim.

10.  The Appellant confirmed that she had moved to her current address prior to making her claim for non-refoulement protection. That was the address to which a letter was sent on 6 January 2017 reminding her that the form was to be returned by 16 January 2017. The Appellant said she did not recall receiving the letter.

11.  Despite being asked several times, the Appellant could give no clear explanation as to why the loss of her mobile phone prevented her from returning the form or contacting the DLS or the Department.

12.  It is apparent from the material before the Board that the Appellant was aware that the form had to be returned within a certain time and that she had been referred to the DLS for assistance. Despite her statement at the hearing that she had contacted the DL, it is also clear from their correspondence that she did not.

13.  I am prepared to accept that the Appellant may have lost her mobile phone around the relevant time. That does not explain, however, why she did not contact the DLS or the Department to ascertain what she was required to do. The letter reminding her to submit the form by 16 January 2017 was sent to her residential address, but she also took no action in relation to that letter.

14.  While the Appellant’s lack of English language skills may have hampered her ability to complete the form herself, she was in no different position to the many claimants who are able to seek the appropriate assistance from the Department, the DLS or within the community.

15.  Taking into account all the available evidence, I am not satisfied that the Appellant was not able to return the completed form as required due to circumstances beyond her control.”     

28.  On 10 April 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  procedural impropriety in the Director’s failure to provide her with sufficient opportunity to re-open her claim and for refusing to accept her explanations and reasons for the delay of presenting her claim;

(2)  procedural impropriety in the Director’s failure to apply high standards of fairness or to conduct any screening interview in assessing her claim;

(3)  error/misdirection in law in the Director’s failure to conduct any interview in the consideration of her claim; and

(4)  procedural impropriety in the adjudicator’s failure to provide her with sufficient opportunity to present her claim and failure to properly consider her claim by simply confirming the Director’s decision.  

29.  The complaints of the applicant under Grounds (1) and (2) are clearly without basis or merits given what appear to me ample time and opportunities whether under the statutory provisions or at the immigration officer’s discretion for her to return the completed SCF and to re-open her claim by the Department in the circumstances as described in paragraphs 15–26 above, and I do not see how it can reasonably be argued that there was any procedural unfairness or failure to apply high standards of fairness in the Director’s decision either to treat her claim as withdrawn or to refuse to re-open her claim.

30.  The same can be said about her Ground (3) as there is no provision for the Director to conduct any interview prior to the return of a completed torture claim form, and even if there were it cannot in my view be reasonably argued that the Director was wrong in law or procedurally unfair not to conduct any interview before receiving her SCF, as to do otherwise would simply be impractical, inefficient, and not proportionate to costs in terms of public law administrations.

31.  As for Ground (4), it is clear from the reasons given in the Board’s decision stated above that the applicant was again given every opportunity to explain her failure to comply with the requirement of returning her SCF within the stipulated time, and that the adjudicator was in my judgment entirely correct not to accept the applicant’s reasons for her failure to return the completed SCF as required due to circumstances beyond her control.  As a matter of fact, the applicant never even attempted to produce or submit any SCF in the process of her appeal before the Board or at her oral hearing before the adjudicator.

32.  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.

33.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her 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