BAHADUR v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 243/2018

[2020] HKCFI 1272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 243 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 11 August 2017 refused; and

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

It is further directed that:

1.  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;

2.  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;

3.  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;

4.  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

5.  liberty to apply.

Observations for the Applicant:

1.     Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) has made provisions for the making of a claim for non-refoulement protection in Hong Kong on the ground of a torture risk, starting with the requirement of the claimant to submit a torture claim form, or the later Non-refoulement Claim Form (“NCF”) upon the subsequent commencement of the Unified Screening Mechanism (“USM”) for screening non-refoulement claimants on all applicable grounds, in which paragraph 24 of “The Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme” effectively mirrors Section 37Y of the Ordinance which stipulates 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 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.”

2.     Section 37ZA also sets out the following duties required of a claimant in respect of his or her claim:

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

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;

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 address as soon as practicable after the change.”

3.     Any failure on the part of the claimant in respect of the above duties may result in the claim being treated as withdrawn, as stipulated by Section 37ZG 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) 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 reason 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.”   

4.     In the present case, the Applicant, a 29-year-old national of India, on 22 March 2014 raised a claim with the Immigration Department of his intention to seek non‑refoulement protection.

5.     On 1 September 2016 while being detained at the Castle Peak Bay Immigration Centre (“CIC”), the Applicant was served with a blank NCF with a written request to complete and return the completed NCF to an immigration officer on or before 29 September 2016 so that substantiation of his claim could be processed.

6.  Shortly thereafter on 5 September 2016 the Applicant was granted legal representation by the Duty Lawyer Service (“DLS”) in respect of his non-refoulement claim, and on 9 September 2016 he was released from CIC on recognizance.

7.  By a letter dated 23 September 2016 the DLS informed the Department that they were unable to contact the Applicant and had no further instruction to act for him.

8.  As by 29 September 2016 the Applicant still failed to return a completed NCF, by a written notice dated 4 October 2016 from an immigration officer, he was informed that his non-refoulement claim was treated as withdrawn under Section 37ZG(1) of the Ordinance.      

9.  On 20 February 2017 the Applicant in writing requested to re-open his non‑refoulement claim.  By a letter dated 21 February 2017 from an immigration officer, the Applicant was required to provide detailed reason for his failure to return his completed NCF due to circumstances beyond his control with documentary proof.

10.  On 28 February 2017 the Applicant replied that when he was released from CIC on 9 September 2016, he had left his blank NCF behind in CIC, and as he did not know where to obtain another NCF, he therefore did not return his completed NCF, and as he was afraid of being arrested again, he did not report to the Ma Tau Kok Recognizance Reporting Office.       

11.  By a Notice of Decision dated 1 March 2017 the Director of Immigration (“the Director”) refused the Applicant’s request to re-open his claim upon not being satisfied that he had provided sufficient evidence to show that he had not been able to return the completed NCF as required due to circumstances beyond his control. 

12.  On 10 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, putting forward the following grounds for his appeal:

“ I would like to make this appeal regarding my case/claim, which had closed by the Immigration Department. I don’t agree with decision made by Immg. Because I can’t go back to my country of origin, the risk of being ‘Torture’ ‘CIDTP’ is still on, upon my return. I believe I should be screened & interview before coming to conclusion. The reason why I had failed to submit ‘NCF’ Form are as follows:

(1) I am an illiterate person, I didn’t had any idea of whom to contact to get ‘NCF’ Form again, since I left ‘NCF’ Form in ‘CIC’.

(2) I didn’t had a single penny/money to travel to ‘Ma Tau Kok Immg Dept’ I went to ‘ISS’ for welfare money but my welfare was already expired.

(3) It’s so wrong of Immg to refuse my claim to be re-open because it’s like violation of my rights.”   

13.  On 11 August 2017 his appeal was dismissed by the Board for the following reasons as stated in its decision:

“ 13. Having carefully considered all the relevant issues in this appeal, I decline to allow the Appellant to re-open his non-refoulement claim application. The Appellant was released from the CIC on 9 September 2016 and the time limit to return the completed NCF was on or before 29 September 2016. There was ample time and opportunity for the Appellant to obtain another blank NCF from the Immigration Department, either directly or via the DLS. The DLS had acted for the Appellant since 5 September 2016 and the Appellant did not give instruction to the DLS after he was released from the CIC on 9 September 2016. I also noted that the Appellant did not apply to re-open his non‑refoulement claim when it was deemed withdrawn on 30 September 2016, until he was detained in the CIC again in February 2017. The Appellant had therefore failed to provide any evidence in writing to satisfy an immigration officer that the reason why he had not been able to return the completed NCF within the prescribed time limit was due to circumstances beyond his control. It was for this reason that the Director refused the Appellant’s application to re-open his non-refoulement claim.

14.  Section 37ZG(3) provides that … The Appellant had not provided any relevant evidence in writing to support his application to re-open his non-refoulement claim under Section 37ZG(3) of the Ordinance and to show that the reason why he had not been able to return the completed NCF within the prescribed time limit was due to circumstances beyond his control. Under these circumstances, the Director was justified to refuse the Appellant’s application to re-open his non-refoulement claim.”   

14.  On 14 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, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he was not satisfied with their decisions for rejecting his claim without reasonable grounds, and that he cannot go back to India because he will lose his life without providing any particulars or elaborations as to what error of law or procedural unfairness may have been made in the decisions.  Nor did he request any oral hearing for his application.  

15.  He was however also late with his application, Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

16.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 11 November 2017, he was therefore more than 3 months late 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

17.  In the Applicant’s case, a delay of more than 3 months must be considered as substantial or excessive, for which he did not provide any explanation, and as the record shows that the Board’s decision was sent to him on the same day at CIC where he had been detained up to the time when he filed his Form 86, I am unable to see any acceptable reason or justification for his such significant delay.

18.  As for the merits of his application, as already noted the Applicant has also failed to put forward any proper or valid ground with any particulars or elaborations in support of his intended challenge, let alone any reasonably arguable one.

19.  In my view, the Board was right to agree with the Director, even assuming the Applicant did in fact, as alleged, leave behind his blank NCF in CIC when he was released on 9 September 2016, a most unlikely event indeed in the circumstances of his case, that he would still have had ample time and opportunity of about 3 weeks either directly or through DLS to retrieve his NCF from CIC or to obtain another NCF from the Immigration Department, and that his reason for failing to report to Ma Tau Kok Recognizance Reporting Office or to seek assistance from them because he was afraid of being arrested was equally unacceptable as circumstances beyond his control.

20.  Whilst it is noted from above that he did proffer a further explanation in his Notice of Appeal for his default because he did not have any money to travel to Ma Tau Kok Office after his “welfare had expired”, of which the Board did not appear to have dealt with in its decision, in my judgment it could not have advanced his case any further in the absence of any supporting evidence from him that that was indeed the case, and that in any event there is nothing to suggest that he could not have travelled, albeit on foot, to the Ma Tau Kok Office or any other office of the Immigration Department for assistance, as it has been held that an applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case: Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J (as he then was).

21.  As such and in the circumstances I agree with both the Director and the Board that the Applicant had clearly failed his duty as a claimant under Section 37ZA(1) of the Ordinance, and that I am not satisfied that he has shown that there is any merit in his intended application.       

22.  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 refusal to re-open the Applicant’s claim.

23.  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 any good reason for his significant delay, I refuse to extend time and accordingly dismiss his 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