DAVINDER RAM v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2866/2018

[2020] HKCFI 1391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2866 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 application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 13 March 2018 be refused; and

(2)  Application for leave to apply for judicial review be 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:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 13 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant 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 by replacing the Board with the Director of Immigration (the “Director”) as interested party.

The applicant

4.  The applicant is an Indian national.  He is an illegal immigrant in Hong Kong and he lodged his non-refoulement claim with the Director by way of a written representation of 16 August 2015.  However, he failed to return the non-refoulement claim form (“NCF”) to the Director despite repeated requests through the Duty Lawyer Scheme.  His claim was deemed to have been withdrawn and a removal order was issued.

5.  He then asked for re-opening of his claim.  But he did not give any reasons for his non-submission of the NCF to the Director, who refused to re-open his application.  He appealed to the Board, but his appeal was out of time.

6.  The Board asked him to provide explanation for his delay in his appeal.  He did not provide any explanation to the Board.  The Board then proceeded to assess his application for the appeal out of time.  But there was no material before the Board as he had not given any statement to the Director.  The Board therefore, by its Decision, refused to extend time for him to file his Notice of Appeal.  In other words, his appeal was not entertained.

Application for leave to apply for judicial review

7.  The applicant filed Form 86 on 13 December 2018 for leave to apply for judicial review of the Board’s Decision.

8.  In his affirmation in support of his application, he did not set out any grounds in support of his application.

DISCUSSION

9.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

10.  The Court has taken into consideration that the Board has considered the following facts, which the applicant does not dispute as the Director’s Notice of Decision dated 31 March 2017 and the Board’s Decision had been sent to the applicant and he had not made any objection as to the receipt of those Decisions in his affirmation in support of this application.

(1)  The applicant was duly advised to provide all the information on which he sought to rely in support of his non-refoulement claim through his duty lawyer.

(2)  His duty lawyer had applied to the Director three times for extension of time for submission of the NCF, in which he would set out the facts in support of his claim.  The Director acceded to the requests.  But the applicant did not submit his NCF.  Finally, his duty lawyer informed the Director that he had no instructions to act for him.

(3)  By virtue of section 37ZG(1) of the Immigration Ordinance, Cap 115 (“the Ordinance”), his non-refoulement claim application is deemed to have been withdrawn.  The Director had duly informed him of the same.

(4)  A Deportation Order was issued against the applicant, who then applied to re-open his claim.

(5)  The Director requested the applicant to submit information or evidence in support of his application for re-opening his claim.  But he failed to provide any information or evidence to the Director.

(6)  The Director had assessed his application and refused it.  By letter dated 31 March 2017, the Director informed the applicant his decision.

(7)  The applicant filed his Notice of Appeal with the Board out of time.  The Board invited him to submit written explanation why he did not file his Notice of Appeal within time.  The first letter was returned.  A second letter was sent to his address he provided to the Immigration Department.  This letter was not returned.

(8)  The applicant has not submitted any explanation for his delay in his appeal.

(9)  By virtue of section 37ZT(2) of the Ordinance, the Board proceeded to consider the preliminary issue of his application for extension of time for filing his appeal.

(10)  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, held that the Board had to consider all the circumstances, including the merit of the case.  However, since the applicant had not given any statement to the Director, there was no such information or his personal circumstances for the Board’s consideration.

(11)  The Board, under section 37ZT(3) of the Ordinance, decided that it would not be unjust not to allow the late filing of the Notice of Appeal.

(12)  The Board refused to extend time for the applicant to file his Notice of Appeal.

11.  The Court does not find any error of law or procedural unfairness in the Board’s decision.  The decision of the Board is not, in any respect, open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

13.  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.

14.  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.

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