JEHANGIR WAQAS v. IMMIGRATION DEPARTMENT

HCAL 778/2018

[2020] HKCFI 1908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 778 OF 2018

     Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time be refused; and

2.  the application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.   The applicant, born in 1986, is a national of Pakistan.  According to him, he left his country for Mainland China by bus, and came to Hong Kong via Shenzhen on or around 9 August 2011.  He filed non-refoulement claim in Hong Kong. The Director of Immigration (“the Director”) rejected his torture claim under Part VIIC of the Immigration Ordinance. Subsequently, on 5 June 2013, he again submitted a non-refoulement claim on the ground of protection against cruel, inhuman or degrading treatment or punishment (“CIDPT”). He did not return the completed claim form as required by the Director before the deadline. The Director treated his claim as withdrawn on 6 August 2016.

2.   10 months later, on 13 June 2017, the applicant wrote to the Director expressing his wish to re-open the claim. Upon the applicant’s failure to provide details and written evidence in support of his application, the Director refused to re-open his claim. His petition to the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) was also dismissed.

3.  Briefly stated, the claim was based on the fear that, if refouled, he would be harmed or killed by a man called Raja, who was a known criminal, because the applicant married to a woman who had been engaged to the brother of Raja.

Facts and procedural history

4.  The detailed facts of the case and the procedural history were stated by the Adjudicator of the Board as follows:

“5. Based on what the Petitioner [Applicant] had disclosed to the Immigration Office in an earlier interview and the further questioning, what had happened to him before he escaped to Hong Kong was as follows: he married a woman who had been engaged to another man, and the man’s brother, Raja, was infuriated. Raja was a known criminal in the same village and a wanted person who had paid bribes to the police. Raja also suspected that the Petitioner [Applicant] had informed on him about some illegal dealings in alcoholic drinks. He then went to the Petitioner [Applicant]’s house with a gun and opened fire. The Petitioner [Applicant] was unharmed but two of his goats were killed. The Petitioner [Applicant] had made a complaint to the police about the shooting. Raja became even more angry. Being fearful, the Petitioner [Applicant] decided to leave the village but Raja still called to make threats. Finally, at the suggestion of his friend, the Petitioner [Applicant] decided to leave the country. He obtained his passport and left the country on 2 August 2011. He said he went to China by bus, and came to Hong Kong via Shenzhen on or around 9 August 2011.

6. According to the record, there had been a previous determination by the Director in relation to the Petitioner [Applicant]’s torture claim under Part VIIC of the Immigration Ordinance. Subsequently, on 5 June 2013, the Petitioner [Applicant] took out a non-refoulement claim on the ground of protection against cruel, inhuman or degrading treatment or punishment (“CIDTP”). The Director commenced the related screening procedure of the Petitioner [Applicant]’s non-refoulement claim other than torture risk on 8 July 2016. The Petitioner [Applicant] was duly served with a Notice to Persons Making a Non-refoulement Claim (“the Notice”) and a blank Supplementary Claim Form (“the SCF”). He was informed that the completed SCF should be returned to the Immigration Department before the deadline, which was 5 August 2016. Hence, the Petitioner [Applicant] had about a month to fill in the form.

7. The Petitioner [Applicant] obtained legal assistance in respect of his claim from the Duty Lawyer Service (“DLS”), but they later wrote to the Director that they no longer had instructions to act for the Petitioner [Applicant].

8. The Petitioner [Applicant] did not submit the completed SCF to the Immigration Department, and he made no application for an extension of time. In these circumstances, the Director treated that the Petitioner [Applicant]’s non-refoulement claim had been withdrawn on 6 August 2016.

9. About 10 months after the deemed withdrawn of the claim, on 13 June 2017, the Petitioner [Applicant] wrote to the Director expressing his wish to re-open the claim. The Director sent a letter, dated 15 June 2017, to the Petitioner [Applicant] informing him of the requirements in connection with the application to re-open the claim. The Petitioner [Applicant] was reminded to provide detailed reasons about his failure to return the completed SCF in time, and to submit written evidence by 22 June 2017. The Petitioner [Applicant] was further reminded that the application may be rejected if the Petitioner [Applicant] could not satisfy an immigration officer that he had not been able to return the completed form as required due to circumstances beyond his control.

10. The Petitioner [Applicant] had not submitted anything further by way of evidence or otherwise. The Immigration Officer could only make an assessment of the re-opening application based on the material before him. Having done that, he decided to refuse the application. His written Notice of Decision was issued on 26 June 2017.

11. What the Petitioner [Applicant] stated in his June 2017 letter to the Director was, inter alia, that he had no money to take transportation to do the reporting, and that he wanted to re-open his non-refoulement claim because his life would be in danger if he were sent back to his country.”

The Board’s decision

5.  The Board determined the petition by the applicant without a hearing. Having considered all the material and evidence before him, the Adjudicator of the Board found that if the lack of money for transport had anything to do with the returning of the completed form, one would have thought that the applicant could at least contact and seek assistance from the Immigration Department.  Moreover, the original deadline of returning the SCF was August 2016, yet, in June 2017, there was still no indication from the applicant that he had completed the SCF [12].  

6.  Further, the applicant’s case was that he had travelled from Pakistan to China by bus, found his way to Shenzhen and eventually arrived in Hong Kong.  And he had managed to do that in only about a week.  It would take a determined and resourceful person to accomplish this task, especially for someone who did not speak the local language.  Had the applicant wanted to, he would have been able to find some way to complete and return the SCF in time, or at least inform the Immigration Department of his difficulties.  The applicant had not explained satisfactorily why he could not do so [13].

7.  Having considered the case carefully, the Adjudicator concluded that he reached the same conclusion as the Director: the applicant had failed to provide sufficient evidence to show that he had not been able to return the completed SCF as required due to circumstances beyond his control.  The Board therefore dismissed the petition of the applicant to re-open his non-refoulement claim.  The decision of the Director dated 26 June 2017 was confirmed.

Application for leave to apply for judicial review

8.  The applicant filed a Form 86 (“dated 3/4/18”) on 3 May 2018 for leave to apply for judicial review with “Immigration Department” as the respondent and “Director of Immigration & Torture Claim Appeal Board” as interested party.  I will treat the application as against the decisions of the Director and the Board.  However, as the Director’s decision has been superseded by the Board’s decision, it is not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.

9.  The applicant did not request an oral hearing.  The application is therefore considered on the papers.

10.  No grounds for the relief sought were contained in the Form 86.  In his affirmation, he only stated that his torture claim was “disposed of unfairly” and his “life is still in danger back in my home country”.  He asked for “justice that justify the rule of law”.

11.  By a letter dated 11 May 2020 posted to the applicant’s address for service provided in his Form 86 (Castle Peak Bay Immigration Centre), the Court invited the applicant to submit information including any submissions that he would like to make. The letter was returned marked “already left”. The same letter dated 20 May 2020 was sent by post to his address last reported to Recognizance (Reporting) Office of the Immigration Department. Again, the letter was returned marked “unclaimed return to sender”. As no updated address has been provided to the Court by the applicant for service and he has not asked for oral hearing, the Court proceeds to consider his application.

Discussion

12.  It is noted that the application for leave was made out of time.  The application must be made “promptly” and in any event “within three months from the date when grounds for the application first arose”: O.53 r.4(1).  But the Court retains a discretion to extend the period within which the application may be made where it considers there is “good reason” to do so. The Court will apply the principles set out in AW v Director of Immigration [2016] 2 HKC 393 to consider if extension of time should be granted for the application.  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. 

13.  In the applicant’s case, there had been a delay of almost 3 months which should not be regarded as insignificant or unsubstantial, for which he did not provide any explanation. I cannot see any good or valid reason for his delay.

14.  The Court also examines if he has merit in the intended appeal.

15.  Far from a case with realistic prospect of success, I am of the view that the intended application of the applicant has no prospect of success at all.

16.  The Immigration Ordinance imposes duties on the applicant to substantiate a torture claim.  The applicant must comply with the requirements provided under the Ordinance.  Section 37Y provides:

“(1) A claimant must, on written request by an immigration officer—

(a) complete a torture claim form, and the completed form must—

(i) state the grounds of the claim and the facts supporting the claim; and

(ii) include such other information as is required by the form; and

(b) return the torture claim form so completed to an immigration officer at an address specified in the form, together with all documents supporting the claim that are readily available to the claimant when the form is returned.

(2) The claimant must return the completed torture claim form in accordance with subsection (1)(b)—

(a) within the period of 28 days after a written request under subsection (1) is given to the claimant; or (emphasis added)

(b) within any further period that an immigration officer allows under subsection (3).”

17.  Any failure on the part of the claimant in respect of the above duties may result in the claim being treated as withdrawn, as stipulated by Section 37ZG as follows:

“(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 due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required under section 37Y (2).

(4) If an immigration officer decides to re-open a person’s torture claim under subsection (3), the immigration officer must, by written notice, inform the person –

(a) of the decision; and

(b) that the person is required to return a completed torture claim form in respect of the claim to an immigration officer at an address specified in the form within 14 days after the notice is given.

(5) If an immigration officer decides not to re-open the person’s torture claim, the immigration officer must, by written notice, inform the person of –

(a) the decision;

(b) the reasons for the decision; and

(c) the person’s right under section 37ZR to appeal against the decision.

(6) If a torture claim is re-opened under subsection (3), subject to subsections (7) and (8), processing of the claim is to continue in accordance with this Part as if the claim had not been withdrawn.

(7) Section 37Y(2) applies to the torture claim as if for paragraph (a) of that section there were substituted –

‘(a) within the period of 14 days after the notice under section 37ZG(4) is given to the claimant; or’.

(8) If a completed torture claim form in respect of the torture claim is not returned in accordance with section 37Y(2) as read with subsection (7), the claim is to be treated as withdrawn under subsection (1) -

(a) on the expiry of the 14-day period; or

(b) if a further period is allowed under section 37Y(3), on the expiry of the further period.”

18.  Although such statutory provisions are applicable only to torture claim, by virtue of the administrative provisions governing under the unified screening mechanism (USM), the same constraints are applicable for other non-refoulement claims: Ram Chander v Director of Immigration [2018] HKCA 585.

19.  Paragraph 24 of the “The Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme” also effectively mirrors 37ZG of the Ordinance.

20.  A torture claim form (TCF) includes a supplementary torture claim form (SCF) as specified by the Director.  A completed torture claim form must be returned within 28 days or any further period that an immigration officer allows: section 37Y(2).  Section 37ZG(1) further provides that 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).

21.  After the claim was treated as withdrawn, the claimant may re-open his application if he provides sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required…: Section 37ZG(3).

22.  Having received the applicant’s request to re-open his claim, the Director requested the applicant to provide detailed reasons and evidence that he had not been able to return the completed SCF beyond his control.  The applicant did not provide anything further by way of evidence or otherwise.

23.  The Director had followed the proper procedure and given every opportunity to the applicant to explain why he was unable to submit the SCF. The applicant was also reminded that publicly-funded legal assistance was available to him and warned of the consequence of his failure to do so. The applicant still did not provide further explanation.  The Director was therefore entitled to base on available information to exercise his power to decide whether to re-open the claim.  He decided not to re-open as he found there was no sufficient evidence that due to circumstances beyond the applicant’s control, he had not been able to return the SCF as required.

24.  The Board examined the case carefully and reviewed all the information and materials before it.  Apart from examining whether the Director had followed the procedure properly, the Board also considered the explanation in the applicant’s letter of 13 June 2017 to the Director asserting that he had no money to take transportation to do the reporting and that his life would be in danger if he was refouled to his country.

25.  The Board also took initiative to consider further whether the delay in submitting his SCF had any causation with his assertion in the materials before the Board that he had made a report to local police (“FIR”) about the shooting, and hence he might be trying to retrieve the report causing the delay.  Having given the matter serious consideration, the Board finally concluded that there could not be any causal link between the retrieval of the FIR and the delay in submitting the SCF. Had it been a relevant issue affecting the submission of the SCF, the applicant would have mentioned it in his letter [17].

26.  I agree with the analysis and findings of the Board.  A claimant of non-refoulement protection would have been given free legal assistance from the Duty Lawyer Service (“DLS”) and advised of the importance of the time limit for submitting a torture claim form.  He would also be assisted by the DLS to fill in the claim form.  The applicant had obtained legal assistance from the DLS. They later wrote to the Director that they no longer had instructions from the applicant.  Assuming that the applicant had no money for transport for submitting the SCF, he could have informed the DLS, the Immigration Department or non-government organization for assistance.  There was no reason and evidence in support why he could not do so.

27.  In my view, the Board carefully took into account all the facts and materials relevant to the applicant’s non-refoulement claim.  It evaluated all the circumstances of the applicant’s case.  It obviously appreciated the serious issue at hand and the grave consequence of its decision as well as the high standards of fairness required by law.

28.  I agree with both the Director and the Board that the applicant had failed his duty as a claimant to submit his torture claim form and failed to provide sufficient evidence to be satisfied that due to circumstances beyond his control that he had not been able to return the claim form.

29.  The Board did not conduct an oral hearing. I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277.  Given that the only “explanation” offered by the applicant for his not submitting the SCF was that he had no money for transport and the Board did not challenge the fact, I do not find the course adopted by the Board to be irregular or unfair.

30.  The Form 86 and affirmation do not show any valid explanation for his delay in submitting the claim form to the Director nor any reasonably arguable ground for judicial review.  There is also no cogent evidence or information to establish a substantial risk of harm that he might face.  Nor can I see that in the interests of justice his claim should be re-opened.

31.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their refusal to re-open the applicant’s claim. Their decisions are not Wednesbury unreasonable. I am not satisfied that the applicant has shown that there is any merit in his intended application.

32.  For these reasons I refuse to grant the applicant extension of 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