ESMIRALDE NAGUIMBING RUZ v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 23/2019

[2023] HKCFI 119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 23 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision dated 3 March 2017 of the Director (the “Director’s Decision”) and the decision dated 8 November 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) for dismissing his request to reopen his non-refoulement claim. His application filed on 4 January 2019 is late.^[1] I shall deal with this issue below.

2.  The applicant’s application for leave for judicial review of the Director’s Decision has to be dismissed in limine. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held:

“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

3.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The Director’s Decision

5.  The applicant is a national of the Philippines.  He lodged his non-refoulement claim on 30 May 2015.  On 18 October 2016, a “Notice to Persons Making a Non-refoulement Claim” and the non-refoulement claim form (“NCF”) were sent to the applicant.  In the notice, the applicant was informed that he ought to submit the completed NCF within 28 days from the date of the notice.

6.  On 8 November 2016, a letter was sent to the applicant through the Duty Lawyer Service (“DLS”) for the submission of his NCF.  DLS requested an extension of time to 14 November 2016 for difficulty in interpretation service.  The extension of time was subsequently granted and the applicant was required to submit the NCF on or before 25 November 2016. On 24 November 2016, the DLS notified the Immigration Department that they were unable to contact the applicant and thus ceased to act for him.

7.  By way of a letter dated 2 December 2016, the applicant was informed that his non-refoulement claim was treated as withdrawn on 26 November 2016 due to his failure to return the completed NCF within the time limit.

8.  On 24 February 2017, the applicant wrote to request reopening of his non-refoulement claim.  In his letter, the applicant explained that he failed to attend the screening interview because he needed to take care of his two babies and family and that he was unable to afford the transportation fee to the interview.

9.  In the Director’s Decision, the Director rejected his request on the basis that the family issue and financial insufficiency were not considered as reasons for failure to submit the NCF on time.  If the applicant was minded to seek protection, he ought to reach out to all the available resources.

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  By way of the Board’s Decision, the Board affirmed the Director’s Decision.  In particular, the Board opined that family commitments and lack of travel fund were not circumstances beyond the applicant’s control.  There were governmental and non-governmental organizations that were available to the applicant if he asked for assistances.

11.  As a result, the Board rejected the applicant’s request and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 4 January 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affidavit in support of his application, the applicant did not set out any specific ground.

DISCUSSION

14.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline for the applicant to file the notice of appeal is on 8 February 2018. The delay is therefore more than months and he has not given any explanation for his delay. On this basis, his application should be dismissed. However, I shall, nevertheless, consider the merits of the applicant’s case.

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17.  The question before this Court is whether the Board is correct in dismissing his appeal against the Director’s Decision refusing to re-open his non-refoulement claim for the reason that he had failed to return a completed torture claim form as required under section 37Y(2) of the Ordinance and he had failed to give sufficient evidence in writing to satisfy the immigration officer the reasons as stated in section 37ZG(3) set out below.

18.  Section 37ZG provides, inter alia:

Deemed withdrawal of torture claim on failure to return completed torture claim form

(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 the person— (Amended 7 of 2021 s. 14)

(a)  had exercised all due diligence to return a completed torture claim form as required under section 37Y(2); but

(b)  failed to return a completed form as required under the section because of circumstances beyond the person’s control. (Amended 7 of 2021 s. 14)

19.  The facts are not in dispute. The applicant had failed to return the completed torture claim form as required under section 37Y(2). The immigration officer had given a letter dated 2 December 2016, informing him that his non-refoulement claim was treated as withdrawn on 26 November 2016 due to his failure to return the completed NCF within the time limit. Although in this letter, the immigration officer did not give notice to the applicant that he may apply to re-open the claim under subsection (3) as provided under section 37ZG(2)(b) of the Ordinance, the fact that the applicant had, by letter of 24 February 2017, requested for re-opening his non-refoulement claim had shown that the applicant had already had notice of his right and he had exercised his right. Thus, this non-compliance with section 37ZG(2)(b) of the Ordinance has not caused any prejudice to the applicant’s right.

20.  It is also undisputed that the applicant had given his reasons for non-compliance with section 37Y(2) for not submitting the completed NCF to the immigration officer. His reasons are:

(1)  he could not attend screening interview as he was too busy for taking care of his two babies and family; and

(2)  he was not able to afford the transportation cost for attending the screening interview. See paragraphs 4-6 of the Director’s Decision.

21.  The Director did not accept that his explanations are due to circumstances beyond his control as required under section 37ZG (3)(b) of the Ordinance because those difficulties could be overcome by other means such as the service of the NGO [Non-Government Organizations] or the Social Welfare Department. See paragraph 8 of the Director’s Decision.

22.  The Board agreed with the Director. It further found that the applicant’s ground of appeal being that his case was closed without a chance for him to undergo screening was a predicament of his own making. He was legally represented and he had been given extension of time to submit the NCF. However, he had failed to comply with the statutory requirement. See paragraphs 9 and 10 of the Board’s Decision.

23.  The applicant has given no valid reason to challenge the Board’s Decision.

24.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

25.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

26.  His application for judicial review of the Director’s Decision is dismissed.

27.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I 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