SK ARIF v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1345/2018

[2020] HKCFI 89

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1345 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 the Director of Immigration dated 27 May 2016 refused; and

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

It is further directed that:

3.  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;

4.  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;

5.  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;

6.  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

7.  liberty to apply.

Observations for the Applicant:

1. The Applicant is a 35-year-old national of India who first raised a torture claim on 6 December 2008 with the Immigration Department on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.  On 25 April 2012 his torture claim was rejected by the Director of Immigration (“the Director”), and on 18 October 2012 the Applicant was repatriated to India.

2. Sometime in 2015 the Applicant entered Hong Kong again, and in December of the same year he raised a non-refoulement claim with the Immigration Department, and in his written signification he claimed that upon his repatriation to India, he was unable to resolve his problem with his creditor, he therefore felt that his life would be in danger if refouled to India.

3. Accordingly his claim was treated by the Director as a subsequent claim under section 37U(1), Part VIIC of the Immigration Ordinance, Cap 115, of which section 37ZO of the Ordinance provides as follows:

“ (1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) 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.

(3) In deciding whether or not a person may make a subsequent claim undersubsection (2), an immigration officer may take into account any findingof credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides thata person may not makea subsequentclaim under subsection (2), the immigration officer must give the personwritten notice of the decision, and the notice must also include the reasons for the decision.

4. By a Notice of Decision dated 27 May 2016 the Director stated that he was not satisfied that the Applicant had provided sufficient evidence to show that there had been a significant change of circumstances since his previous claim was finally determined, or that his alleged change of circumstances when taken together with the material previously submitted in support of his previous claim would give his subsequent claim a realistic prospect of success, and therefore refused his request to make a subsequent claim.

5. As it was not a decision referred to under section 37ZR of the Ordinance against which an appeal may be made to the Torture Claims Appeal Board (“the Board”), the Applicant on 10 July 2018 filed a Form 86 for leave to apply for judicial review of the Director’s decision not to allow him to make a subsequent claim, and put forward the following grounds for his intended challenge:

 (1) that the Director reached his decision wrongly in assessing his claim and that it was not reasonable or fair as required by the Wednesbury test;

 (2) that the Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his claim;

 (3) that the Director failed to take into account that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies which was the direct result of misconduct of the police for which the state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

 (4) that the Director had failed to consider or give sufficient weight to those listed relevant COI which supported the Applicant’s aversions that the police in his countrywould not be able to protect; and

 (5) that the Director referred to relevant COI which suited his pre-conceived conclusionwhich was a clear case of unfair attitude which should render his decision void; thatthe Director failed to attain high standard of fairness required by the Wednesbury testin the decision which should be considered as unreasonable in the scope of public law. 

6. The Applicant was however by then seriously late with his application, 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.

7. As the last day for the Applicant to file his Form 86 for judicial review of the Director’s decision of 27 May 2016 fell on 27 August 2016, he was therefore late by almost two years with his application, for which he did not provide any explanation.

8.  On 6 August 2018 the Applicant filed an affirmation applying to withdraw his leave application, but before it could be dealt with by the court, on 26 August 2018 he wrote to court to state that he wanted to proceed with his application, which he later also confirmed at the oral hearing, but during which he did not make any further representation or submission for his application.  Accordingly I proceed to first consider whether or not to extend time for his late application.

9.  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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

10.  In the Applicant’s case, a delay of almost two years must be considered as very substantial and excessive, for which as noted above he did not provide any explanation,and as such I do not accept that he has any good reason for such serious delay. 

11.  As for the merits of his intended application with reference to his proposed grounds for judicial review, I note that apart from the fact that they are all just broad and vague assertions of the Applicant without any particulars or specifics or elaborations as to how they apply to his case or in what way do they show that the Director had erred in his decision,many of them in fact appear to be some standard pro forma grounds commonly used in this type of application but lack specific reference to requisite particulars on the facts of the Applicant’s case, such as the complaints of the Director’s failure to consider state acquiescence or of his improper reliance on COI in assessing the Applicant’s claim.  Such general assertions cannot constitute valid grounds for challenging the Director’s decision, as held by the Court of Appeal in Re Mizan Sikder [2019] HKCA 20, [17].

12.  As provided by section 37ZO above, in considering whether to allow the Applicant to make a subsequent claim after having previously already made one, the Director was to be satisfied as to whether the Applicant had provided sufficient evidence in writing that there had been a significant change of circumstances since the previous claim was finally determined, and that such change when taken together with the material previously submitted in support of his previous claim would give the subsequent claim a realistic prospect of success.

13.  It is clear that the Director did in paragraphs 6 – 7 of his decision properly take into consideration of all the evidence submitted by the Applicant in writing together with those material previously submitted by him for his previous claim, and upon which the Director did proceed to explain in paragraphs 10 – 13 why he was not satisfied that the Applicant had provided sufficient evidence to show that there had been a significant change of circumstances when taken together with his previously submitted material that there wouldbe a realistic prospect of success with his subsequent claim.  As such and in the absence ofany legal or factual error in the decision being clearly and properly identified by the Applicantwith sufficient particularity, I do not find any reasonably arguable basis for him to challenge the finding of the Director. 

14.  In the premises and 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 serious delay, I refuse to extend time and accordingly dismiss his 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