CASTILLO RAQUEL ADONA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1170/2018

[2021] HKCFI 3333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1170 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 1st Applicant for her own and on behalf of the 2nd Applicant in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 5 May 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicants:

1.  Part VIIC of the Immigration Ordinance, Cap 115 have made provisions for the procedures relating to torture claims in Hong Kong, in which Section 37X(1) provides that a person who claims non-refoulement protection on the ground of a torture risk must first signify to an immigration officer in writing the person’s intention to seek non-refoulement protection. 

2.  Once that has been made, Section 37Y will kick in to require that the claimant must then do the following:

“(1) … 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

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.

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

3.  Section 37ZA also sets out the following duties of the claimant:

(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 to either of those addresses as soon as practicable after the change.”

4.  If the claimant fails to return a completed torture claim form as required under Section 37Y(2) as noted above, the torture claim must be treated as withdrawn under Section 37ZG but may be re-opened upon the claimant complying certain terms and conditions stipulated as follows:

“(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) In 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.  Upon the commencement of the Unified Screening Mechanism (“USM”) in March 2014 for all non-refoulement claims for protection under the applicable grounds, the above provisions apply equally to all matters relating to the completing and submitting of the Non-Refoulement Claim Form (“NCF”) by a claimant to an immigration officer within the required period as a pre-requisite for the making of a non-refoulement claim.       

6.  In the present case, the 1^st Applicant (“A1”) is a 37-year-old national of the Philippines who made written representations to the Immigration Department on 31 December 2014 and 5 January 2015 of her intention to seek non-refoulement protection in Hong Kong for herself and her daughter, the 2^nd Applicant (“A2”) born in 2013, as she feared of being harmed or killed by her husband if refouled to the Philippines over her extra-marital relationship with another man in Hong Kong. 

7.  Accordingly their screening process commenced on 3 November 2015 when a briefing for them was held by the Immigration Department with a Tagalog interpreter, during which A1 was given a notice of requirements for making a non-refoulement claim, a blank NCF with a covering letter of the same date, and was briefed of those requirements as set out in the notice including the returning of a completed NCF to the Immigration Department within 28 days and the consequences of their failure to do so which would render their non-refoulement claim to be withdrawn.       

8.  On 4 November 2015 the Applicants were given legal representation from the Duty Lawyer Service (“DLS”) for their claim, and by letters dated 24 November 2015 and 15 December 2015, DLS was also reminded of the requirement for the Applicants to return their NCF within the required period.

9.  By a letter dated 22 December 2015 DLS informed the Director that they were unable to continue with their legal representation for the Applicants.

10.  As no NCF had been returned by the Applicants to the Immigration Department, the Director by a letter dated 5 January 2016 to their last reported address informed them that their non-refoulement claim had accordingly been treated as withdrawn as of 23 December 2015, but that they may apply to re-open their claim if they are able to provide sufficient evidence in writing to satisfy an immigration officer that they had not been able to return their NCF as required due to circumstances beyond their control.

11.  One month later on 29 January 2016 the Applicants in writing requested to re-open their claim, and accordingly the Director by a letter dated 17 February 2016 required the Applicants to provide information in writing to support their request on or before 2 March 2016, and on the same day an immigration officer also contacted and reminded A1 via her last reported mobile phone number of the same requirements for their request, during which A1 confirmed that she was able to communicate in English and understood those requirements for their request.       

12.  However, no information had been received from the Applicants, and by a Notice of Decision dated 15 April 2016 the Director refused to allow the Applicants to re-open their claim upon their failure to provide any or sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond their control that they had not been able to return a completed NCF within the required period.

13.  On 12 May 2016 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as their Notice of Appeal was filed outside the 14-day period required by Section 37ZS(1) of the Ordinance, for which they stated in section 5 of their Notice of Appeal that they got the decision late because someone had taken the letter away from the mail box but without any further details or documentary evidence, while in section 2 for the grounds of their appeal, they just repeated what they had earlier stated in their written significations of their intention to seek non-refoulement protection due to fear of harm from A1’s husband if refouled to the Philippines instead of the basis or grounds for challenging the Director’s decision to refuse to re-open their claim.     

14.  Accordingly, and in pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of their Notice of Appeal, and by a written notice dated 5 May 2017 the Board refused to allow the late filing of the Applicants’ Notice of Appeal upon finding that it was 9 days later than the 14-day period as required, that it was an inordinate delay, and that their explanation given in Section 5 of their Notice of Appeal was just a bare statement without documentary evidence in support and was illogical, as the Board explained in its decision:

“8.   Under Section 5, they stated: “I get this letter last 30-5-16 because someone took it away in the mail box that’s why I didn’t reply immediately”.  It was just a bare statement without relevant documentary evidence in support of such reasons. 

9.   It is arguable that they could not have documentary evidence in support because someone took away the letter.  However what they stated was illogical because if someone took away the letter they could not have been able to retrieve it and fill in the Notice of Appeal/Petition.  Their explanation cannot be sustained.

10.  By reasons aforesaid this application for late filing of Notice of Appeal is dismissed.”

15.  On 22 June 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in her supporting affidavit of the same date A1 just stated that they reject the decision as it disregarded their dangerous situation but without providing any details or particulars or elaboration as to how it did so, nor was she able to put forth any proper ground for their intended challenge at the hearing of their application or to explain why even up to now they have not completed or return their NCF to the Director other than an excuse that she has a poor memory.

16.  By then the Applicants were also way out of time with their leave 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.

17.  As the last day of the 3-month period for them to file their Form 86 fell on 5 August 2017, the Applicants were therefore more than 10 months late with their 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.    

18.  In the Applicants’ case, a delay of more than 10 months must be considered as very substantial or inordinate, for which A1 explained at the hearing of their application that they never received the decision in the mail, as they might have then moved to another address, and that it was only much later when they reported on their recognizance that they were informed of the decision by their immigration officer, but by then they were already way out of time with their intended application.

19.  The record shows that the decision was sent on the same day to the Applicants’ last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate their bare assertions, such as when did they in fact move to a different address of which it was their duty to inform the authorities as soon as practicable, or as to when exactly were they so informed of the decision when they reported on their recognizance which they were required to do periodically, I am not satisfied that they have provided any good reason for their serious delay.    

20.  As for the merits, if any, of their intended application, as noted above the Applicants have not put forth any proper basis or ground for their intended challenge of the Board’s refusal to allow the late filing of their Notice of Appeal, and at the hearing of their application A1 conceded that they have no good reason for their failure to return a completed NCF to the Director as required in the first place, or for their subsequent failure to provide any explanation or evidence of any circumstances beyond their control that might have prevented them to do so.  As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge. 

21.  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, or as in the present case the failure to make out a claim without the required NCF, are matters within their province being the decision-makers on the facts, and not primarily for the Court in determining an application for leave for judicial review, and that the Court will not usurp the role of the Director or the Board 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. 

22.  In the Applicants’ case, the Board refused to allow the late filing of their Notice of Appeal for the reasons as noted above, of which the Board was in my judgment entitled to do given their failure to provide any evidence to corroborate their bare assertions, and although the Board did not appear to have specifically stated to have taken into account of the merits of the Applicants’ appeal as part of the relevant matters of fact within the knowledge of the Board under Section 37ZT(2)(b) of the Ordinance, and which has been held to be necessary by the Court of Appeal in Re Qasim Ali [2019] HKCA 430, the indisputable fact is that the Applicants had never returned a completed NCF within the required period to the Director, and had also subsequently failed to provide any evidence of any circumstances beyond their control which might have prevented them to do so, there is simply no merits in their appeal for the Board to take into account in its decision to refuse the late filing of their Notice of Appeal.       

23.  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 the Director’s decision not to allow the Applicants to re-open their claim or in the Board’s refusal to allow the late filing of their Notice of Appeal.

24.  I am of course mindful of the fact that A2 being a minor now aged 8 was not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, and that for the claims of minors it would be necessary to separately consider and examine whether their case have been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their process before the Board as the proper approach held by the Court of Appeal in the case of Fabio Arlyn Timogan [2020] HKCA 971, but given the fact of the Applicants’ case that they have not even submitted their NCF in order to commence the processing of their claim, and as I have found that there is simply no arguable merits in their intended judicial review, I shall therefore treat the absence of legal representation for A2 in these proceedings as a mere irregularity as it would not serve any useful purpose for her to be so represented under the circumstances.

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