MAJEED AMJAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 2794/2018

[2022] HKCFI 1605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2794 of 2018

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;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 19 July 2018 refused; and

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

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 19 July 2018 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim before the Director had been withdrawn at his request upon his confirmation that it would be safe for him to return to his home country, and that he was subsequently repatriated on 19 October 2015.

2.  The Applicant is a 41-year-old national of Pakistan who first entered Hong Kong illegally on 25 July 2006 and was arrested by police on 26 March 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim under the Unified Screening Mechanism (“USM”) on the basis that if he returned to Pakistan he would be harmed or killed by his former girlfriend’s family who objected to their relationship.

Previous Non-Refoulement Claim

3.  The Applicant was born and raised as a Muslim in Jalalpur Jattan, Pakistan where he met his former girlfriend in 2004, but as she came from a wealthy Christian family who objected to their relationship due to their different religions by making threats against the Applicant who then fled to Karachi, but when he later heard that his former girlfriend had committed suicide as a result, and that her family were looking to kill him in revenge for the dishonor so caused to them, the Applicant on 16 July 2006 departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police, he then raised his non-refouleemnt claim for protection with the Immigration Department, for which he completed a Torture Claim Form (“TCF”) on 26 August 2013 and a Supplementary Claim Form (“SCF”) on 6 January 2015 with legal representation from the Duty Lawyer Service (“DLS”).

4.  However, before attending any screening interview before an immigration officer, the Applicant on 15 September 2015 wrote to the Immigration Department to withdraw his claim under Section 37ZE(1) of the Immigration Ordinance, Cap 115, because he would like to return to Pakistan as soon as possible as it was safe for him to do so.

5.  Upon ascertaining that the Applicant was fully aware of the consequences of his request for the withdrawal of his claim, which had also been confirmed in writing by his lawyer from DLS, the Director allowed the Applicant to withdraw his claim, and as a result the Applicant departed Hong Kong on 19 October 2015 and returned to Pakistan.

Request To Make Subsequent Claim

6.  Almost 3 years later on 7 June 2018 the Applicant sneaked back into Hong Kong illegally from China, and on 14 June 2018 he surrendered to the Immigration Department and made a written representation that whilst in Hong Kong, he was told by his family in Pakistan that his former girlfriend’s family were still looking to kill him in revenge for the dishonor brought to them by her suicide over their former relationship, and therefore he again wishes to seek non-refoulement protection.

7.  The Director found the basis of such claim of the Applicant essentially the same as his previous claim, but since Section 37ZF(3) of the Immigration Ordinance stipulates that a person having given notice to withdraw a claim under Section 37ZE(1) and left Hong Kong must not be allowed to re-open his claim, the Director therefore treated the Applicant’s application as a request to make a subsequent claim.

8.  There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance 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 under subsection (2), an immigration officer may take into account any finding of 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 that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

9.  Accordingly, by a letter dated 4 July 2018 the Director required the Applicant to provide further information and evidence in writing under the above provisions in support of his request within 7 days by 11 July 2018, but which he failed to do so or to make any further response or representation regarding his request.

10.  By a Notice of Decision dated 19 July 2018 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

11.  On 7 December 2018 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he merely stated that he rejects the decision as it disregarded his dangerous situation but without providing any details or elaboration as to how it did so or put forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

12.  By then the Applicant was also out of time 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.

13.  As the last day of the three month-period for him to file his Form 86 fell on 19 October 2018, the Applicant was therefore some 7 weeks late with his application, and 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: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 7 weeks must be considered as very substantial and inordinate, for which he explained at the hearing that he was not aware of the rules and needed to seek help from his friends but by then he was already out of time with his application.

15.  The record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, while ignorance of the rules can never be accepted as an excuse for their non-compliances. As such and in the absence of any further details or evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided any good reason for his serious delay.

16.  As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth any proper ground for his intended challenge, and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim. As such I do not find any merits in the Applicant’s intended application for judicial review either.

17.  In the premises and for the reasons given, 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 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