AHMED GAMAL IBRAHIM GAD v. TORTURE CLAIMS APPEAL BOARD IMMIGRATION AND ANOTHER

HCAL 314/2018

[2019] HKCFI 1046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 314 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 8 November 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.  This is the applicant’s application for leave to judicial review the decision of the Director of Immigration (“the Director”) in refusing to re-open his non-refoulement claim after it was deemed withdrawn due to his failure to return the completed Non-refoulement Claim Form (“NCF”) within the required time, and the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his subsequent appeal.

2.  The applicant is a national of Egypt who upon arrival in Hong Kong made a written signification on 8 May 2017 to the Immigration Department for non-refoulement protection due to fear of harm from the Muslim community in his home country for having converted his religion from Islam to Christianity, but as he failed to subsequently return a completed NCF to the Immigration Department within the required period, his non-refoulement claim was treated as withdrawn, while his request to re-open his claim was also refused by the Department, and when his appeal was also dismissed by the Board, he brought the application now before me.

3.  Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) has made provisions governing the procedures for making torture claims, which upon the commencement of the Unified Screening Mechanism also apply to non-refoulement claims,starting with the requirement of submitting the NCF within the required period as follows.

4.  Section 37Y provides that:

“ (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 respect 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 prescribed by the Director.”

5.  Section 37ZA also imposes the following duties on the part of a claimant in making his or her claim:

“ (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.”

6.  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.”

7.  It is against these statutory requirements and obligations of both the Director and the applicant that I now proceed to consider whether there is any reasonably arguable basis for the applicant’s intended challenge, starting with the following chronology of events that led to the Director’s decision not to re-open his non-refoulement claim:

–     8 May 2017	the applicant by way of written signification raised his non- refoulement claim with the Immigration Department
–     11 May 2017	the Director in writing required the applicant through DLS to submit a completed NCF within 28 days on or before 8 June 2017
–     1 June 2017	the Director in writing reminded DLS to return the applicant’s NCF by 8 June 2017
–     8 June 2017	DLS requested for extension of time for the applicant to return his NCF
–     9 June 2017	the Director agreed to extend time up to 22 June 2017 for the applicant to return his NCF
–     22 June 2017	DLS again requested further extension of time for the applicant to return the NCF
–     23 June 2017	the Director granted further extension of time up to 29 June 2017 for the applicant to return his NCF
–     29 June 2017	DLS informed the Director that despite numerous attempts they were unable to contact the applicant
–     10 July 2017	DLS informed that they were still unable to contact the applicant
–     12 July 2017	the Director informed DLS that the applicant’s claim was treated as withdrawn due to his failure to return the NCF
–     7 August 2017	the applicant wrote to the Director and requested to re-open his claim
–     14 and 15August 2017	the applicant requested to re-open his claim
–     18 August 2017	an immigration officer visited the applicant at the Castle Peak Bay Immigration Centre (“CIC”) to receive his written representation to re-open his claim
–     21 August 2017	DLS was informed of the applicant’s request to re-open his claim
–     28 August 2017	DLS informed the Director that they had no further instruction to act for the applicant

8.  In support of his request to re-open his claim, the applicant put forward the following grounds:

(i)  that he was not aware of the reasons for treating his claim as withdrawn;

(ii)  that although he had not changed his telephone number or address at that time, he never received any telephone calls or letters from DLS for instructions;

(iii)  that it was possible that DLS may have failed to ask the Arabic interpreter to contact the applicant or that there may have been miscommunication that caused the interpreter to instead contact his wife over her non-refoulement claim instead of the applicant;

(iv)  that his life would be in danger in Egypt for religious reason;

(v)  that there were disagreements between him and his wife over her making a separate claim for herself and their children without his consent; and

(vi)  that he wanted to stay with his children in Hong Kong.

9.  By a Notice of Decision dated 31 August 2017 the Director refused the applicant’s request to re-open his claim after finding that he failed to provide sufficient evidence to support his assertions that DLS might have failed to contact him through an interpreter or that the interpreter failed to contact him upon requests of DLS, nor had he approached DLS to provide instruction or information for completing his NCF, and concluded that he failed to show that he had not been able to return the completed NCF due to circumstances beyond his control despite having legal assistance from DLS and having been given ample time to do so.  

10.  The applicant then lodged an appeal to the Board against the Director’s decision.  The Board dealt with his appeal without conducting any oral hearing and on 8 November 2017 dismissed the appeal and also confirmed the Director’s decision.

11.  In its decision the Board agreed with the Director that the applicant failed to provide sufficient evidence to support his application to re-open his claim, as it stated in §23:

“ Section 37ZG(3) provides …

   The grounds stated by the Appellant failed to provide sufficient evidence to support his application to re-open his non-refoulement claim under Section 37ZG(3) of the Ordinance.  His grounds did not show that he failed to return the completed NCF as required due to circumstances beyond his control.  The DLS made numerous unsuccessful attempts to reach him in June and July 2017.  The Appellant himself did not contact the DLS at all relevant time.  The Appellant was well informed and was aware that he had to return the completed NCF to the RAS before the deadline as required. Under these circumstances, the Director was justified to refuse the Appellant’s application to re-open his non-refoulement claim.”

12.  On 28 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he stated the following:

“ I have been detained on the above address (Castle Peak Bay Immigration Centre) since 3^rd August 2018 because my torture claim it was withdrawn because of a misunderstanding between me and the Duty Lawyer Service due to the lack of mine to understand English. The decision of the Director of Immigration (not) to reopen my torture claim is unreasonable and unfair because my life is in danger in my home country and the Immigration must reopen my claim.”

13.  He was however out of time with his Form 86, 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.

14.  In the applicant’s case, the three-month period within which he was to file his Form 86 expired on 8 February 2018, and hence he was late by about three weeks 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.  

15.  While a delay of almost three weeks may not be said to be substantial or excessive, nor can it be regarded as insignificant, for which he explained in his affirmation that he had been detained at CIC since 3 August 2018, which I assume to be a typo and that he actually meant to say 3 August 2017, that cannot be accepted as a valid reason as he was still being so detained when he was able to file his Form 86 and his affirmation for his application now before me.

16.  More importantly, his complaint of the Board’s decision as being unfair and unreasonable is completely devoid of any particulars or elaboration of how it was so, and cannot in my judgment be considered as reasonably arguable for his intended challenge, and in the absence of any legal error or procedural unfairness or irrationality in the decision being clearly and properly identified by the applicant, and given the fact that the applicant had clearly been given ample time and opportunity to submit his NCF within the required time twice extended by the Director who was in my judgment entitled to find on the materials before him that the applicant had failed to provide sufficient evidence to show that it was due to circumstances beyond his control that he had not been able to return his NCF.  In the circumstances I am unable to see any merits or prospect of success in his intended application.

17.  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.

18.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of good reason for his delay, I refuse to extend time and accordingly dismiss his 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