MUHAMMAD NAEEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 937/2018

[2020] HKCFI 2475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 937 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 to apply for judicial review be refused; and

2. Applicationfor leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing to re-open the applicant’s claim of non-refoulement protection.

2.  The applicant is a national of Pakistan.

Facts and procedural history

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

“1. The appellant/petitioner (“the appellant”) is a citizen of Pakistan born on 5 October 1986. He initially made a non-refoulement claim pursuant to Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) on 18 August 2011.

2. Having failed to submit the appropriate questionnaire in time, his application was rejected by the Director of Immigration (“the respondent”) on 20 January 2012 and a subsequent petition to the Chief Executive dismissed by the Adjudicator on 22 May 2012. This was before the establishment of the statutory appeal scheme on 3 December 2012.

3. On 26 August 2013 the appellant made a fresh non-refoulement claim, this time relating only to a risk of torture or inhuman and degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 3”), and the respondent commenced consideration of the matter on 24 May 2016, sending the relevant information and forms to the appellant.

4. Despite reminders sent to the appellant and his legal representatives, he once again failed to return the appropriate claim form within time and his non-refoulement claim was deemed to have been withdrawn on 13 July 2016.

5. On 9 August 2016 the appellant sent a hand-written note to the respondent stating: “I Naeem Muhammad…want to reopen my non-refoulement claim under the USM because I will be in danger if I am in Pak (sic). I don’t want to go back to home country”.

6. The respondent then wrote to the appellant requesting further information on 16 August 2016, but no such information was forthcoming.

7. As a result the respondent rejected the application for re-opening in a letter dated 1 September 2016, stating the appellant had failed to provide any information suggesting any reason why he had been unable to return the appropriate claim form.

8. On 14 September 2016 the appellant lodged an appeal with the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). His grounds of appeal stated simply: “I want appeal (sic)”.

9.    Given the nature of the hearing, the information provided by the appellant and the undisputed history of this matter, I came to the conclusion the appeal could be justly determined without a hearing and went on to consider the matter on the basis of the information already available.”

The Board’s decision

4.  The Board determined the appeal/ petition by the applicant without a hearing.  Having considered all the material and evidence before him, the Adjudicator of the Board found:

“17. The appellant has had several opportunities to explain the reasons for his failure to complete the relevant application in time. His request for re-opening of 9 August 2016, set out above, contained no such reasons and he failed to respond to a reasonable request from the respondent to provide reasons.

18. Furthermore, in lodging his appeal to the Board the appellant provided no reasons whatever, despite the fact he clearly must have known of the appeal procedure and the information necessary to succeed on appeal, given he had been given that information and actually did lodge his appeal.

19. This appellant has been on notice since 24 May 2016 of the requirements and has made no effort whatever to fulfil them. While there is an element of joint endeavour in applications of this kind, in order to ensure the highest standards of fairness, this appellant has a long history of failing to engage and failing to take the appropriate steps to pursue his application in good faith and proactive steps have been taken to try to assist him, all to no avail.

20.  In my judgement, therefore, the appellant has failed to provide evidence that he had been unable to return the appropriate application form due to circumstances beyond his control. His appeal is dismissed.”

Application for leave to apply for judicial review

5.  The applicant filed a Form 86 on 25 May 2018 for leave to apply for judicial review of the decision of the Board.  The Form did not set out any ground for the relief sought and the affirmation in support only stated “I want to Judicial Review refusal decision of the Non-Refoulement Claims Petition Office/The Torture Claims Appeal Board.  The decision was unfair and unreasonable.”

6.  By a letter dated 24 June 2020 posted to his last updated address with the Immigration Department, the court invited the applicant to confirm whether he would like to make any submission and to have an oral hearing.  Since then, the applicant has not made any response or submission to the court.  The applicant did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

7.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The court in a judicial review exercises a supervisory role and its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board and will not interfere with its finding unless it is reversible on public law grounds.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

Application out of time

8.  It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  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.  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.

9.  The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.

10.  In this case, the 3-month time limit expired on 2 February 2018 and the application was late by more than 3 months.  The delay was not a short one, for which the applicant did not provide any explanation.  I do not see any satisfactory or valid reason for the delay.

Merits of the intended application

11.  As for the merits of the intended application, I am of the view that the applicant has no prospect of success at all, let alone a case with realistic prospect of success.

12.  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).”

13.  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.”

14.  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.

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

16.  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).

17.  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).

18.  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.

19.  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.

20.  The Board examined the case carefully and reviewed all the information and materials before it.  It noted that the applicant had had several opportunities to explain the reasons for his failure to complete the relevant application in time.  His request for re-opening contained no such reasons and he failed to respond to a reasonable request from the Director to provide reasons.  In his notice of appeal to the Board, he also provided no reasons for his failure to do so.  He had failed to provide evidence that he had been unable to return the appropriate application form due to circumstances beyond his control.  The appeal was therefore dismissed.

21.  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.  If he had any difficulties in submitting the form, he could have informed the DLS, the Immigration Department or non-government organization for assistance.

22.  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.

23.  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.  I do not find the course adopted by the Board to be irregular or unfair.

24.  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.

25.  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.

Disposition

26.  For these reasons, there is no good reason for extending time to apply for judicial review, 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