BALJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1035/2018

[2021] HKCFI 1485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1035 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 Torture Claims Appeal Board dated 10 November 2017 refused; and

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

Observations for the Applicant:

1.  A person who claims non-refoulement protection in Hong Kong on the ground of a torture risk must provide to the Director of Immigration (“Director”) all the necessary information relevant to the claim promptly and with full disclosure of all material facts in support of his claim as required by various sections in Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”), starting with Section 37ZA which sets out the duties of the claimant as follows:

“(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;

(b) comply with every requirement, procedure and condition (including any time limit) –

(i) prescribed by this Part; or

(ii) required or specified by any person under this Part.

(2) A claimant must provide to the Director and (on an appeal) to the Appeal Board –

(a) the claimant’s residential address in Hong Kong; and

(b) the claimant’s correspondence address in Hong Kong (if different from the residential address),

and must notify the Director and (on an appeal) the Appeal Board in writing of any change of those addresses as soon as practicable after the change.”

2.  One of the most crucial and important documents which the claimant is required to submit to the Director for his torture claim is the Torture Claim Form (“TCF”), or upon the commencement of the Unified Screening Mechanism (“USM”) for screening non-refoulement claims on all the applicable grounds since March 2014, the Non-refoulement Claim Form (“NCF”), of which Section 37Y of the Ordinance stipulates as follows:

“(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

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

(3) An immigration officer may –

(a) on an application made by a claimant in writing before the expiry of a period for returning a completed torture claim form in respect of the claimant’s torture claim; and

(b) on being satisfied that, by reason of special circumstances, it would be unjust not to allow a further period for the claimant to return the completed form,

allow a further period that the immigration officer considers appropriate for the claimant to return the completed form.

(4) The torture claim form is to be in a form specified by the Director.”

3.  In the event that a claimant fails to return a completed TCF or NCF as so required, the claim must be treated as withdrawn, but may be re-opened upon certain conditions being complied with by the claimant to the satisfaction of an immigration officer, as Section 37ZG of the Ordinance provides:

“(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) the decision;

(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 reason 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 subsection (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.”   

4.  In the present case, the Applicant is a 29-year-old national of India who raised a non-refoulement claim with the Immigration Department on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan after his business partner had disappeared with the money. 

5.  While the Applicant was being detained at Pik Uk Prison, the Immigration Department conducted a briefing session with him on 30 June 2016 in connection with his claim with the assistance of an interpreter, during which he was given the Notice to Persons making a Non-refoulement Claim (“the Notice”) together with a blank NCF to be completed and returned to the Immigration Department within 28 days, as well as information for legal representation for his claim from the Duty Lawyer Service (“DLS”).

6.  After DLS had confirmed in writing on 6 July 2016 of instructions to act for the Applicant for his claim, the Director by a letter dated 21 July 2016 to the Applicant via DLS to remind him to return his completed NCF within the time limit as required.

7.  By another letter dated 11 August 2016 the Director again reminded the Applicant to return his completed NCF within the time as required, in which the question of seeking further time to do so if necessary was also explained.

8.  On 17 August 2016 the Director was informed by DLS in writing that they had no further instructions to act for the Applicant regarding his claim.

9.  As no completed NCF had been received from the Applicant, by a written notice dated 23 August 2016 the Director informed the Applicant that his non-refoulement claim had been treated as withdrawn.

10.  Ten months later on 16 June 2017, the Applicant wrote to the Director to request to re-open his non-refoulement claim, claiming that his life was still in danger if he was to be sent back to India.

11.  By a letter dated 19 June 2017 the Director informed the Applicant that his claim may be re-opened if he could provide sufficient evidence in writing within 2 weeks by 3 July 2017 to satisfy an immigration officer that he had not been able to return a completed NCF due to circumstances beyond his control.

12.  On 22 June 2017 the Applicant replied in writing as follows:

“I’m awfully sorry first because I’m sick before and now that’s why I’ve some mistake and also I wanna satisfy Sir I’ve sometime mentally problem and I was forget my interviewed but Respected Sir next time I will carefully attend my interviewed and I will provide you soon evidence about my case.

also I will give you new information but please Sir try to understand I’m only speak Punjabi language. I don’t know how to write in English.

my family inform me they are still looking to me and they will kill me.

I don’t want to go back to India my life is very dangerous they are still finding me in India.”

13.  No further information or evidence had been received from the Applicant, and the Director by a written notice dated 6 July 2017 informed the Applicant that in the absence of any medical or other proof or supporting documents from him to show the exact period of his alleged sickness which might have affected his ability to return his completed NCF, or of any request by him either by phone or letter for extension of time for him to do so, that it was not satisfied that he had been unable to return his completed NCF due to circumstances beyond his control, and therefore refused to re-open his non-refoulement claim

14.  On 12 July 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not conduct any oral hearing and dealt with his appeal in his absence and on paper, and on 10 November 2017 it dismissed his appeal and also confirmed the Director’s decision.

15.  In its decision the Board accepted to be true that the Applicant had suffered from some form of illness during the material time, but found that the Director was correct in that there was nothing to show that the Applicant could not even make a simple phone call to ask for assistance or for an extension of time to deal with his NCF, and made the following findings in paragraph 19 based on what the Applicant had stated in his notice of appeal regarding his failure to return his NCF as required:

“ … b. The Appellant mentioned about mental problem. It was something he had never raised before condition was never raised previously. Be that as it may, based on what the Appellant had disclosed, the mental problem could not have bene a serious one in view of his activities: he was able to start a business in India, he succeeded in obtaining a loan, obviously unsecured, from a or some lenders, he managed to engage a business partner who agreed to come to Hong Kong with him. After the incident of losing his borrowed money, the Appellant was aware and had exercised his right to apply for non-refoulement in Hong Kong. What’s more, the Appellant had the acumen to propose that if the Immigration Department was able to give him the amount of his loan (250,000 rupees), and perhaps a bit more (50,000), then he would choose to go back to India. By any standard, it may seem that the Appellant might have put too much trust in his partner with the money, but it could not support a case of mental problem causing the failing of returning the NCF;

c. The Appellant claimed that he was forgetful and had not even attended his interview, I am not sure exactly what interview he was referring to, but I doubt that he could have forgotten to complete and return the NCF. The Appellant applied to stay in Hong Kong because his life was in danger in India. Hence it’s a matter of life and death whether he can succeed in the claim. He did not forget to call his family and find out about the attitude of the lenders, and it is doubtful that he could have forgotten about the NCF, a crucial document in the process of his non-refoulement claim.

d.  And as to the implied suggestion of language barrier, I note that a Punjabi interpreter was present to assist the Appellant regarding the Notice and the NCF. I further noted that the Appellant was able to write in simple and understandable English in some of the correspondences. In the context of his non-refoulement claim and the subsequently application to reopen, I do not accept that language barrier was a problem affecting the Appellant’s understanding of his rights and duties under the non-refoulement claim.”

16.  On the basis of such findings the Board then came to the same conclusion as the Director that the Applicant had failed to provide sufficient evidence to show that he had not been able to return the completed NCF as required due to circumstances beyond his control ([20] – [21]).

17.  On 6 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he cannot go back to his home country as his life would still be in danger, and that he was not satisfied with the decision but without putting forward any proper ground for his intended challenge.

18.  By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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 to extend the period within which the application shall be made.

19.  As the last day of the three-month period for him to file his Form 86 fell on 10 February 2018, and hence the Applicant was almost 4 months 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: see AW v Director of Immigration [2016] 2 HKCA 393.

20.  In the Applicant’s case, a delay of almost 4 months must be considered as very substantial and excessive, for which he explained at the hearing that he did not know how to apply for judicial review and was not aware of the time limit required therefor, and that by the time he managed to find someone to help him with the application, he was already out of time.

21.  The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and as ignorance of the rules cannot be accepted as any good or valid reason for their non-compliances, I am not satisfied that the Applicant has provided any good reason for his serious delay.

22.  As for the merits, if any, of his intended application, as noted above, the Applicant did not put forward any proper ground in his Form or supporting affirmation for his intended application, nor was he able to do so at the hearing even at the invitation of the court, and in the absence of any error of law or irrationality or procedural unfairness in the process of his appeal to the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

23.  In the premises and 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 consideration of the Applicant’s request to re-open his claim.

24.  As rightly pointed out by the Board in its decision, the requirement for the Applicant to submit his completed NCF as the most crucial document for the proper processing and screening of his non-refoulement claim, of which the Applicant claimed to be a matter of life and death to him but somehow he failed to do so either by himself or through DLS without providing any proper evidence other than some bare assertion of mental problem which had never been mentioned or observed during his process before the Director. Accordingly the Board was in my judgment fully entitled to find that the Applicant had failed to provide sufficient evidence to the satisfaction of an immigration officer or of the Board that he had not been able to return his completed NCF as required due to circumstances beyond his control.      

25.  For these reasons I am not satisfied that there is any merits or 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