HAQUE JAINUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

1.  Form 86 be amended, naming the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review out of time be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 9 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (the “TCAB”) dated 15 April 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (“DOI”) dated 8 March 2018. 

2.  The TCAB Decision dismissed the Applicant’s appeal against the decision of the DOI, which refused the Applicant’s application to re-open his non-refoulement claim under section 37ZG(3) of the Immigration Ordinance.

3.  I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

4.  The Applicant requested for a hearing of this application and he attended the same.  When asked if he had anything to add he confirmed that he had not.

Background

5.  The Applicant is a national of India.  The underlying facts and procedural history have been comprehensively set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

6.  In brief terms, after making his non-refoulement claims, the Applicant was required to file a claim form (“SCF”).  The Applicant applied (with the assistance of the Duty Lawyer Service), and was granted, various extensions of time to complete and return the SCF by 15 August 2017.  That was not done, and on the deadline date the Duty Lawyer Service indicated that they had no instructions from the Applicant. The Applicant’s claim was deemed withdrawn [3(iv)-(xii)].

7.  The Applicant wrote to the DOI on 12 February 2018 requesting (or at least treated by the DOI as a request) to re-open his non-refoulement claims.  The DOI then requested the Applicant to provide sufficient evidence in writing to show that he had not been able to return the completed SCF due to circumstances beyond his control.  No such documents or evidence were provided by the Applicant at all.  The DOI was not satisfied that the Applicant had not able to return the completed NCF as required due to circumstances beyond his control, and therefore refused to re-open the Applicant’s claims [3(xiii)-(xvi)].

Discussion

8.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

9.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

10.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

11.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86 nor in his affirmation in support.

12.  I note that the TCAB properly took into account of the then-in-force section 37ZG of the Immigration Ordinance which sets out the relevant statutory regime in failing to file a completed NCF [3(xvii)].  Properly applying that section, the true question for the TCAB was whether there was sufficient material to exercise a discretion under section 37ZG(3) to allow the claim to be re-opened after section 37ZG(1) is triggered.  The TCAB held that it was justified to refuse the Applicant’s application to re-open his claim; after all the Applicant provided no such evidence to justify the exercise of discretion in his favour [22-23].  I can detect no error, unfairness or irrationality in the reasoning of the TCAB.  It is not for this Court to substitute my own opinion on that question: Re Esmiralde Naguimbing Ruz [2025] HKCA 399 at [21]-[22].

13.  I also note that the TCAB properly considered whether the hearing should proceed in view of the Applicant’s allegation that he was feeling unwell [6-19].  I am satisfied that the hearing was held in a way that was procedurally fair.  Indeed the TCAB was actively trying to see if there was any evidence to show that the Applicant had not been able to return the completed SCF due to circumstances beyond his control [21].

14.  The leave application is accordingly without merit and is dismissed.  I further note that the present leave application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made.  Given that I consider that the proposed judicial review is not reasonably arguable, I refuse to extend time for the Applicant (in any case no reasons were given for the lateness).

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