MOHAMMAD SAIFUL ISLAM alias MOHAMMAD ROBUL ISLAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2139/2019

[2024] HKCFI 2871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2139 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Director’s Decision, which has been superseded by the Decision dated 4 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 4 December 2018. His application was filed on 26 July 2019, which is late for more than 7 months. This issue will be dealt with below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 14 October 2024. I shall deal with his application on paper.

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

The applicant

4.  The applicant, aged 52, is a national of Bangladesh. After his torture claim was rejected on 31 July 2012, he made a further non-refoulement claim on all applicable grounds other than Torture risk[2] on 27 June 2013. On 13 June 2017, the applicant withdrew his non-refoulement claim, but he applied to re-open his claim on 21 June 2017.

The Director’s Decision

5.  By way of the Director’s Decision on 11 July 2017, the Director dismissed the applicant’s application for re-opening. The Director found that (i) there was no change of circumstances that the applicant could not have reasonably foreseen when he made the withdrawal and (ii) there were no special circumstances that would make it unjust not to re-open his non-refoulement claim [8]-[11].

The Board’s Decision

6.  The applicant appealed the Director’s Decision to the Board. The hearing was scheduled on 25 October 2017, for which the applicant failed to attend. As the applicant failed to provide an explanation for his non-attendance within 7 days, the appeal was determined in his absence [11]-[13].

7.  The Board found the applicant’s withdrawal was made in clear and express terms [17]. In any event, he failed to provide any details indicating a subsequent change of circumstances that would increase the prospect of success for his claim [18]-[19].

8.  The Board was satisfied that there had been no change of circumstances at all and the applicant had also failed to provide evidence showing there were special circumstances making it unjust not to re-open his claim. Based on such findings, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision [20]-[23].

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

9.  The applicant has filed Form 86 dated 26 July 2019 for leave to apply for judicial review of the Board’s Decision.

10.  In his affirmation in support of his application, the applicant said that the Board had not considered that he would be in danger if he returns to his country.

DISCUSSION

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

12.  The applicant’s complaint is that the Director refused to re-open his claim. On appeal, the Board had taken on board section 37ZE of the Ordinance, which provides, inter alia:

“Withdrawal of torture claim by claimant

(1) A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2) Subject to section 37ZF(3), a torture claim that has been 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—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim…”

13.  At paragraph 17 of the Board’s Decision, the Board stated:

“This is not a case where there is any question as to the validity of the Appellant’s initial withdrawal, since it is not only in very clear and express terms on its face as provided by the Appellant in the presence of his legal representative and assisted by an interpreter, as referred to above, but the Appellant makes no suggestion that he did not mean to make the withdrawal request or did not understand its consequences.”

14.  The Board also found that the applicant had not raised any change of circumstances in support of his application [18]-[21].

15.  Furthermore, the Board found that the applicant had failed to provide any evidence that there were any special circumstances making it unjust not to re-open his claim [22]-[23].

16.  The applicant therefore failed to satisfy the conditions under section 37ZE of the Ordinance for his application for re-opening his withdrawn claim.

17.  For the reasons above, the Board dismissed the applicant’s appeal.

18.  The applicant’s complaint that the Board had not considered his situation in his country is not a valid challenge against the Board’s Decision. The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, Hon Yuen JA and Lisa Wong J, 13 June 2019, the Court of Appeal held:

“41……Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … …s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals…

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder…”

19.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

20.  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.