TAHIR AMBAR ALI v. DIRECTOR OF IMMIGRATION

HCAL 814/2017

[2018] HKCFI 1544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 814 of 2017

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 the Applicant being absent;

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.  The applicant is a national of Pakistan who first came to Hong Kong in 2009 when he raised a claim with the Immigration Department under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but by a letter dated 15 May 2012 in which he stated that he wanted to return to Pakistan because his problem was solved and that his life was safe in there, and hence he withdrew his claim and was repatriated to Pakistan on 24 July 2012 without any decision being made in respect of his claim.

2.  The applicant subsequently entered Hong Kong illegally and surrendered to the Immigration Department on 23 May 2016, and on 11 August 2016 he lodged a non-refoulement claim in which he stated as follows:

“ I sneaked into Hong Kong on 23-03-2016, because I had political problem and land dispute with my cousin Qasim and his followers from PML(N). They threatened to kill me if I go back to Pakistan. I wish to apply for non-refoulement claim in Hong Kong.”

3.  Not surprisingly the Director of Immigration (“the Director”) found the applicant’s claim seriously lacking information and supporting materials, and hence by a letter dated 29 August 2016 requested him to provide further information on or before 12 September 2016, and when that letter was returned unclaimed and marked “address unknown”, a telephone call was made to the applicant and after his confirmation of his address as the same as before, a further letter was sent out on 3 October 2016 with the same request for him to provide further information on or before 17 October 2016.

4.  In that letter the applicant was specifically referred to Section 37ZO of the Immigration Ordinance when he was requested to provide his evidence in support of his claim as follows:

“ Under section 37ZO of the Immigration Ordinance, in force since 3 December 2012, a person may make a subsequent torture claim if he provides sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since the previous claim was withdrawn and the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

To aid our consideration of your subsequent torture claim and application for non-refoulement protection on applicable grounds other than torture claim, including grounds of risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (‘BOR3 risk’) and/or risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (‘Persecution risk’), please provide us the following information in writing:

(a)   Evidence that there has been a significant change of circumstances since your previous claim, was withdrawn; and

(b)   Detailed information on your present application for non-refoulement protection in Hong Kong on applicable grounds other than torture risk.

Please note that if we do not receive further information and evidence from you on or before 12 September 2016, we would take that you do not have further information and evidence to submit in support of your subsequent torture case and application for non-refoulement protection on applicable grounds other than torture risk.  Your subsequent torture claim/‌application for non-refoulement protection will be assessed based on available information and may be rejected if your subsequent torture claim does not have a realistic prospect of success/you fail to give a general indication of your reasons for claiming non-refoulement protection on applicable grounds other than torture risk.”

5.  In the absence of any response or further information from the applicant the Director by a Notice of Decision dated 24 October 2016 rejected his claim and subsequently served a removal order on him.  In his decision the Director gave the following reasons for rejecting the applicant’s claim:

“ In you written signification of 11 August 2016, you failed to provide reliable evidence to substantiate your subsequent torture claim/application for non-refoulement protection on applicable grounds other than torture risk. Despite our request of 3 October 2016, you did not provide any further information to allow our consideration of your application.

After careful consideration, it is decided that you may not make a subsequent torture claim/non-refoulement claim on applicable grounds other than torture risk due to your failure to show that there has been a significant change of circumstances since your previous claim was withdrawn and that your application for non-refoulement protection on applicable grounds other than torture risk is relating to an act not falling within the meaning of any applicable grounds as set out in the Notice to Persons Making a Non-refoulement Claim.”  

6.  On 24 January 2017 the applicant filed his notice of appeal against the removal order in which he stated as follows:

“ I want to appeal because I have until problem in my country that why I came back coz in my country I have life threats. Last time I left Hong Kong because of my family said OK here now. But when I went there the same problem with me so give me time about this to prove.”

7.  After again checking with the applicant about his address, the Director by a letter dated 26 January 2017 informed him of the earlier decision of 24 October 2016 of the refusal of his claim.

8.  On 27 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Director’s decision of 24 October 2016, and in it he put forward the following grounds for his intended challenge:

(1) that the Director had unlawfully fettered his discretions by refusing the his non-refoulement claim on the grounds that they did not satisfy the requirement;

(2) that the Director’s decisions to refuse his claim were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness; and

(3) that the Director’s failed to meet the greater care and duty owed to a self-represented claimant.

9.  In his supporting affirmation of the same date the applicant gave the following reasons and explanations in support of these complaints of his:

“ 4. The Director of Immigration alleges that on 3 October 2016; they made a request for further information to allow our consideration of my application. However, I regret to note that I do not recall any such request being made. Nevertheless, I do appreciate that I should provide further information by myself but they should have given me an extension of time or opportunity to appeal against the refusal but in vain.

5. On numerous occasions, I wrote various letters to the Director of Immigration in which I requested them to inform me the status of my case. There is now produced and shown to me marked ‘TAA-1’ a copy of the said letters dated various.

6. On 20^th September 2017, I specifically requested for Notice of Decision in order to appeal and then I was given a letter dated 24^th October 2016 (‘Notice of Decision’). There is now produced and shown to me marked …

7. I strongly believe the Director of Immigration failed to act reasonably by confirming that Notice of Decision reached me on time.  The Director of Immigration refused to reply to me within reasonable time despite my repeated reminder letters to them.”

10.  By then the applicant was of course way out of time 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.  As the Director’s decision was dated 24 October 2016, any leave application would have to be made not later than 24 January 2017, and hence there is a delay of more than nine months in the applicant’s leave application.  

11.  It is clear to me that the applicant’s explanation must be the same as that for his failure to provide the Director with further information as to his claim, which is that he never received those letters from the Director notwithstanding his telephone confirmation of his address, which was stated at Room 1, 3/F, 218 Tai Nam Street, Sham Shui Po, Kowloon in the letters from the Director, while in both the applicant’s supporting affirmation and the exhibited copies of letters from him to the Director all show a different address which may go to support his claim of not receiving the Director’s request for further information.

12.  However, a close examination of the dates of all those letters from the applicant show that none of them were made during the period of the Director’s letters of requests between August and October 2016, but were instead all dated in 2017 with the earliest one on 13 March 2017.

13.  Whilst it is of course possible that the applicant might have in August 2016 already moved to the new address as stated in those letters of his and therefore the Director’s requests sent after August 2016 never reached him, but as noted above after the Director’s first request was returned unclaimed, the second request dated 3 October 2016 was sent out to the same address after confirmation with the applicant on the phone, which goes to show that at least in October 2016 the applicant had still not yet moved to his new address. In any event it is clearly his duty to so inform the Director of any change to his address.

14.  Furthermore, and equally significant is the applicant’s admission in paragraph 4 of his affirmation quoted in paragraph 9 above, that he was aware that he should provide further information to the Director, and if it is his complaint that he was not given any extension of time or opportunity to do so, I note that this is not his first application or his first time in Hong Kong, as he was here from 2009 to 2012 for his first torture claim application and should therefore know his way around and more importantly his dealings with the Immigration Department in similar circumstances, and that there was nothing to stop him from submitting further information in support of his claim even afterwards if he so wished.

15.  In fact, notwithstanding what he has asserted in his affirmation, even now in his leave application he did not provide any further information in support of his claim as to what political problem and land dispute that he had with his cousin in Pakistan, nor did he do so at the oral hearing of his application when he failed to attend without any explanation.  In the circumstances I do not accept his claim to have never received the Director’s requests for further information in support of his case, and hence that cannot be his explanation for his delay with his leave application either.

16.  As for my consideration of the merits of his intended application to see if there is other good reason to extend time, I am unable to find any merits or basis in any of his proposed grounds as being just his broad and vague assertions without any particulars or specifics or elaborations as to how they applied to his claim, of which I totally agree with the Director that as it stands it is wholly devoid of any substance or justification for non-refoulement protection.

17.  In the premises and for the reasons given, 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 to extend time for him to do so, his leave application is hereby dismissed.

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