HUSSAIN RIZWAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 692/2018

[2021] HKCFI 922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 692 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  A person who claims non-refoulement protection in Hong Kong on the ground of a torture risk must provide to the Director of Immigration (“Director”) all the necessary information relevant to the claim promptly and with full disclosure of all material facts in support of the claim, as required by Part VIIC of the Immigration Ordinance, Cap 115, starting with section 37ZA which 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 in either of those addresses as soon as practicable after the change.”

2.  One of the most important documents which the claimant is required to submit to the Director in support of the claim is the Torture Claim Form (“TCF”), or the Non-Refoulement Claim Form (“NCF”) or Supplementary Claim Form (“SCF”) upon the commencement of the Unified Screening Mechanism (“USM”) for screening non-refoulement claimants on all the applicable grounds since March 2014, section 37Y of the Ordinance provides as follows:

“(1) A claimant must, on written request by an immigration officer –

(a) complete a torture claim form, and the completed form must –

(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 specified by the Director.”

3.  In the event that a claimant fails to return the NCF or SCF as so required, the claim must be treated as withdrawn, but may be re-opened upon certain conditions being complied with to the satisfaction of an immigration officer, as stipulated by section 37ZG of the Ordinance 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) the decision;

(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 subsection (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 national of Pakistan who first raised a torture claim in or about 2012, and after it was rejected by the Immigration Department, he then sought non-refoulement protection in 2014, with the following chronological events as detailed in the subject decision of the Torture Claims Appeal Board (“Board”) which led to his present application for leave to apply for judicial review of that decision:

-  3 June 2014 the Applicant submitted a written signification for non-refoulement claim

-  9 March 2016 the Immigration Department in writing requested him to complete and submit his Supplementary Claim Form (“SCF”) within 28 days, to which the Applicant acknowledged in writing and was referred to Duty Lawyer Service (“DLS”) for legal representation on the same day

-  30 March 2016 the Immigration Department in writing reminded the Applicant to complete and return his SCF on or before 27 April 2016. And with a warning that failing which his claim would be treated as withdrawn

-  13 April 2016 the DLS in writing informed the Immigration Department that they had no further instructions to act for the Applicant

-  14 April 2016 the Immigration Department in writing reminded the Applicant to return his SCF by 27 April 2016

-  20 April 2016 the Immigration Department again reminded the Applicant to return his SCF

-  29 April 2016 the Immigration Department in writing informed the Applicant as by then he still had not returned his SCF, his claim was therefore treated as withdrawn, and that he may apply to re-open his claim by providing sufficient evidence to show that he was not able to return the SCF due to circumstances beyond his control

-  8 July 2016 the Applicant requested to re-open his claim

-  19 July 2016 the Immigration Department required the Applicant to provide sufficient evidence on or before 2 August 2016 that his failure to return the SCF was due to circumstances beyond his control

-  18 August 2016 the Immigration Department informed the Applicant that his request had been rejected as up to then he had not responded to their letter or provided any evidence as so required in support of his request

-  20 January 2017 the Applicant again requested to re-open his claim

-  26 January 2017 the Immigration Department informed the Applicant that his request had already been rejected and that he may appeal to the Appeal Board against that decision      

5.  On 17 May 2017 the Applicant accordingly lodged an appeal to the Appeal Board against the Director’s decision, and for which he attended an oral hearing on 5 March 2018 before the Board during which he made submissions and answered questions put to him by the Adjudicator for the Board. On 18 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

6.  In its decision the Board found the Applicant’s explanation that he failed to return his SCF because he did not receive any of the letters or written notice from the Immigration Department not acceptable upon finding that he did receive those letters from the Immigration Department to his last reported address and to which he did either acknowledge or respond accordingly, that none of those letters from the Immigration Department had been returned through undelivered post, and concluded that the Applicant had failed to provide any evidence of any circumstances beyond his control which may have prevented him to return his SCF to the Immigration Department that his appeal was rejected.  

7.  On 20 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would be in danger in his home country but without putting forward any ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not see any reasonably arguable basis for his intended challenge.

8.  It is in fact noteworthy that on 9 March 2016 when the Applicant was provided with the blank SCF for him to complete with the assistance of legal representation from DLS at that time that he had had more than 5 months up to 18 August 2016 at least to submit to the Immigration Department as part of his evidence in support of his request to re-open his claim, but which even up to now in his present application that he has failed to do so, which is clearly one of his primary duties required by section 37ZA of the Ordinance as stated above in order to substantiate his claim, and for which none of his explanations of failing to receive any letters from the Immigration Department even if true could have been accepted as circumstances beyond his control, as the Board had correctly found in its decision.     

9.  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 case.

10.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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