RAJESH KUMAR ALIAS RAJESH KUM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2711/2018

[2021] HKCFI 554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2711 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 be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 10 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. I shall deal with his application for extension of time for his application below.

2.  This application did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party. It is further amended that the relief the applicant seeks relief is the Board’s Decision.

The applicant

4.  The applicant is an Indian national. He lodged his non-refoulement claim on 17 April 2014. On 14 October 2016, his claim was treated as withdrawn owing to his failure to complete the Non-refoulement Claims Form (“NCF”) as required under section 37ZG of the Immigration Ordinance (“the Ordinance”):

37ZG. Deemed withdrawal of torture claim on failure to return completed torture claim form

(1)  A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(3)  A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that due to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).

37Y. Submission of torture claim form

(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).

5.  The immigration officer issued the NCF to the applicant on 18 August 2016 and 12 September 2016 respectively.  The applicant was legally represented under the Duty Lawyers Scheme.  The applicant failed to return the completed NCF despite two extensions of time having been granted to him. By a letter dated 18 October 2016, the Director informed the applicant that on 14 October 2016 his claim was treated as withdrawn.

6.  By letter dated 9 January 2017, the applicant requested for re-opening of his claim.  He told the Director that because of his family being tortured by the syndicate in his own country, he resorted to drinking and forgot to submit the NCF to the Immigration Department.  The Director did not accept that those were the circumstances beyond his control and there being no documentary proofs had been provided as requested, his request for re-opening his claim was refused.

7.  By Notice of Decision dated 20 January 2017 (“the Director’s Decision”), the Director informed the applicant that his request was refused, with the reasons stated therein.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He attended the hearing on 16 April 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)  The applicant had not provided any evidence, medical or otherwise, to suggest that he was an alcoholic. [8]

(2)  The Director had written to the applicant several times whilst he was being detained, advising him of his duty to provide information for his claim and that he was legally represented as well. [9]

(3)  The Board had taken into consideration of the law (at.4, Directive 2004/83/EC of 29 April 2004: A B C v Staatssecretaris van Vekllgheld en Justitie (2014) EUEJ C-148/13) guidance, e.g. the UNHCR Handbook, the duty of the claimant to cooperate with the Director. [10]

(4)  The Director had properly carried out his responsibility to ensure that the applicant was aware of his duty and the applicant had manifestly failed to cooperate with the Director, notwithstanding that he was legally represented. [11]

(5)  The Board also did not accept the reasons given by the applicant for not submitting the NCF, duly completed.

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 19 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmations in support of his application, he said that he was not satisfied with the Board’s Decision.

DISCUSSION

12.  The application for leave is made out of time. The Court will have to consider whether leave should be granted to the applicant to file the application out of time.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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.

13.  Although the applicant has not set out the reasons for his delay, I consider that he is not legally represented and I shall also consider the merit of his case.

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para. 45.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… … Assessment of evidence … … are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  His ground in support of this application is only his opinion without any evidence or specific in support of it.  It does not assist his application.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The Board had considered the merits of his case before it made its Further Decision not to extend time to the applicant to file his 2^nd Notice of appeal.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

19.  I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review.  Accordingly, I 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