HOSSAIN MOHAMMAD HRIDOY v. TORTURE CLAIMS APPEAL BOARD

HCAL 349/2019

[2023] HKCFI 2062

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 349 OF 2019

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 refused.

Observations for the Applicant:

1.  Any 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 stipulated by various sections of 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 and crucial documents required of a claimant under these duties to provide to the Director is the Torture Claim Form (“TCF”), or Non-refoulement Claim Form (“NCF”) now commonly used upon the commencement of the Unified Screening Mechanism (“USM”) in March 2014 for all non-refoulement claims so as to present the relevant grounds and factual basis of the claim together with all the facts, information and evidence in support for non-refoulement protection within the required period or periods for the proper assessment and determination by the Director, as stipulated by Section 37Y of the Ordinance 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,

allows 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.  If a claimant fails to return a completed TCF or NCF as so required, the claim must be treated as withdrawn, but may be re-opened only under certain conditions being complied with by the claimant to the satisfaction of an immigration officer, as provided under Section 37ZG of the Ordinance:

“(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 91) 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.  In the present case, the Applicant is a national of Bangladesh who by a written significations dated 13 and 14 of March 2016 to the Immigration Department raised a non-refoulement claim for protection.

5.  On 19 April 2016 the Applicant was served with a Notice to Person Making a Non-refoulement Claim together with a blank NCF by an immigration officer assisted by an interpreter, and was required to return the completed NCF within 28 days by 17 May 2016. On the same day the Applicant was also referred to the Duty Lawyer Service (“DLS”) for legal representation for his claim.

6.  By a letter dated 10 May 2016 from the Immigration Department, the Applicant was reminded to return his completed NCF on or before 17 May 2016.

7.  By a letter dated 12 May 2016 the Applicant requested via DLS for extension of time to submit his NCF.

8.  By a letter dated 16 May 2016 the Director extended the time for the Applicant to return his completed NCF to 7 June 2016.

9.  On 6 June 2016 DLS in writing informed the Director of having no further instructions to act for the Applicant in his claim.

10.  By a letter dated 8 June 2016 from the Director, the Applicant was informed that his non-refoulement claim was treated as withdrawn upon his failure to return a completed NCF as required within the period as extended, and that he may apply to re-open his claim by providing sufficient evidence in writing to an immigration officer that he had not been able to return his NCF due to circumstances beyond his control.

11.  Almost 2 years later on 19 March 2018 the Applicant in writing requested to re-open his non-refoulement claim by stating that “I want to re-open my non-refoulement claim in Hong Kong. As I am still in danger if I am sent back to my country.”

12.  By a letter dated 9 April 2018 from the Director, the Applicant was required to provide sufficient evidence in writing to an immigration officer in support of his request to re-open his claim on or before 23 April 2018.

13.  On 2 May 2018 the Director received a letter from the Applicant stating that “I want to continue my case. Thanks for your help. If I go back [to] my country the government party [will] kill me.”

14.  By a Notice of Decision dated 23 May 2018 the Director refused to allow the Applicant to re-open his non-refoulement claim upon finding that he had failed to provide sufficient evidence in writing to satisfy an immigration officer that he had not been able to return the completed NCF as required due to circumstances beyond his control.

15.  On 1 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to determine his appeal on paper, and on 1 February 2019 the Board dismissed his appeal and confirmed the Director’s decision.

16.  In its decision the Board upon considering all the relevant materials including the events and communications between the Immigration Department and the Applicant as well as copies of their communications and the Notice of Appeal agreed with the Director’s decision that the Applicant had failed to provide sufficient evidence in writing to satisfy the immigration officer that he had failed to return the completed NCF as required due to circumstances beyond his control.

17.  On 8 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  Misdirection in law in that the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision;

(9)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

18.  These are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision which was not about any determination of his non-refoulement claim as those grounds are clearly referring to, but rather the refusal of the Director to allow him to re-open his claim upon his failure to provide sufficient evidence in writing that he failed to return a completed NCF within the period as required due to circumstances beyond his control. As such I do not find any of these grounds reasonably arguable for his intended challenge.

19.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

20.  In the Applicant’s case, the Board rejected his appeal for the thorough and detailed analysis and reasoning set out in its decision after having considered all the relevant materials and information, and in the absence of any error of law or procedural unfairness in his appeal process to the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

21.  The fact is that it has been correctly established by both the Director and the Board in their respective decision as noted above that the Applicant had clearly failed to provide any, never mind sufficient, evidence in writing to satisfy an immigration officer that he had failed to return a completed NCF as required at all, and never mind any circumstances beyond his control. In fact, even up to now in his application before me, there is still no completed NCF from him, or any explanation as to why he has failed to do so.

22.  I should note that the Applicant in his Notice of Appeal ledged with the Board had attached some 11 pages of what appear to be grounds or bases for his non-refoulement claim which he was supposed to include in his NCF for the purpose of substantiating his claim to the Director as required under Section 37Y of the Ordinance, but which were wholly irrelevant to his appeal before the Board when it was clearly for him to show that the Director or the immigration officer was wrong in law or in facts or was Wednesbury unreasonable in not allowing him to re-open his claim. Given the fact that he never provided any explanation at all to an immigration officer as to why he had not returned a completed NCF, never mind any circumstances which might be beyond his control to do so, and as noted above that even up to now that there is no sight of any NCF from him, a clear case of a failure of his duty under Section 37ZA (1) of the Immigration Ordinance. As such I am unable to see any reasonably arguable basis at all to challenge the finding of the Board.

23.  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 determination of the Applicant’s request to re-open his claim.

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