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HCAL 2715/2019
[2022] HKCFI 2520
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2715 OF 2019
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Subramaniam Navarajan |
Applicant
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent
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Director of Immigration
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Putative Interested Party
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review against the decision of the Torture Claim Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 7 December 2017 (the “Board’s Decision”). His application filed on 17 September 2019 is seriously late. This issue will be dealt with below.
2. In the Board’s Decision, the Board upheld the decision of the Director of Immigration (the “Director”) dated 11 August 2017 refusing the applicant’s request to re-open his non-refoulement claim (the “Director’s Decision”).
3. The applicant requested an oral hearing. On 25 July 2022, I heard the applicant.
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 sought non-refoulement protection in Hong Kong. On 27 October 2016 and 2 December 2016 respectively, he wrote to the Immigration Department and requested to re-open his non-refoulement claim which was previously treated as withdrawn due to his failure to return the non-refoulement claim form (“NCF”) within the time limit. On 16 December 2016, the Director acceded to the applicant’s requests and re-opened his non-refoulement claim. On that day, the applicant was informed that the deadline in returning the revised NCF was on or before 30 December 2016. The applicant was also warned that the failure to return the NCF on the specified date would result in a withdrawal of his non-refoulement claim.
6. Nevertheless, the applicant again failed to return the NCF on 30 December 2016. On 26 January 2017, the applicant was informed that his non-refoulement claim was treated as withdrawn.
7. On 15 July 2017, the applicant filed another request to re-open his non-refoulement claim. On 24 July 2017, the Director requested the applicant to submit sufficient evidence in writing on or before 7 August 2017 showing that he was unable to return the NCF within the time limit due to circumstances beyond his control. In a letter (dated 20 July 2017) delivered to the Immigration Department on 24 July 2017, the applicant explained that the failure was due to a virus fever and he could provide a medical certificate in support.
8. Having considered the relevant circumstances, the Director decided not to re-open the applicant’s non-refoulement claim. In elaboration, the Director opined that the applicant was aware of the deadline in returning the NCF; that he was provided with legal assistance; that he was given a month to prepare the NCF with the assistance from the Duty Lawyer Services; that the alleged virus fever was not a circumstance which could justify the failure; and that he failed to provide the medical certificate in support.
9. On these premises, by way of the Director’s Decision, the Director concluded that there were no circumstances beyond the applicant’s control which prevented him from returning the NCF.
The Board’s Decision
10. The applicant appealed the Director’s Decision to the Board. After considering the relevant circumstances, the Board found that (i) the applicant was given a month to complete the NCF; (ii) he was provided with the legal assistance which only ceased on 20 January 2017 due to lack of instructions; (iii) he failed to provide any medical evidence in support of his claimed health issue; (iv) it was implausible that he had been suffering from the fever for almost a month; and (v) there was an inordinate delay of more than 5 months in requesting the re-open of his claim since the deadline for him to return the NCF.
11. In light of the aforesaid findings, the Board was of the view that the Director had complied with section 37ZG(5) of the Immigration Ordinance in refusing to re-open the applicant’s non-refoulement claim. Thus, the applicant’s appeal was dismissed.
Application for leave to apply for judicial review of the Board’s Decision
12. The applicant has filed Form 86 dated 17 September 2019 for leave to apply for judicial review of the Board’s Decision.
13. In his affirmation in support of his application, the applicant said that he does not agree with the Board. He cannot go back to his country because his life is in danger. Also, he was not given a screening interview or an appeal hearing.
DISCUSSION
14. As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The delay is serious. Nevertheless, I shall, first 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 Decisions should be examined with rigorous examination and anxious scrutiny.
17. This issue before this Court is whether the Board had complied with the public law requirements in coming to its decisions as set out in the Board’s Decision on the applicant’s appeal.
18. Section 37 ZG of the Ordinance provides for re-opening of a withdrawn claim:
37ZG. 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).
(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. It is clear that the applicant is aware of the reasons given by the Director rejecting his application for re-opening his claim. He does not deny that he had failed to return a completed torture claim form as required under section 37Y(2) and under section 37ZG(1). He had raised the reason that he was suffering from virus fever, for which he had 2 medical reports, which he had not produced to the Director or the Board to prove his case. The Board’s Decision is dated 7 December 2017, which is more than 4 years ago. If the applicant is serious about his application to re-open his claim, he should have produced his medical reports to the Director or to this Court in his application. He has failed to do so.
20. It is clear that the applicant does not have medical evidence to explain his failure of not returning the completed torture claim form on 30 December 2016, the deadline given to him by the Director for its return. The applicant has a burden to supply all information in support of his claim to the Director under section 37ZA of the Ordinance[1]. In the circumstances, I find that all the evidence supports the Board’s Decision, which affirms the Director’s Decision.
21. 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.
22. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
23. I therefore 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.
Dated the 23rd day of August 2022
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(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 23 August 2022
Subramaniam Navarajan
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23 August 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8189/17/8/227/S172
Director of Immigration
Putative Interested Party’s ref. no.:
L/M (16850) in ImmD RA 7/37/C; QA T/C 3437/16 (Formerly RBCZ 13642/16);
L/M (14990) in ImmD RA 7/37/C (formerly QA T/C 1489/16; RBCZ 2858/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] 37ZA.Duties of claimant
(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—
(a) provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;
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