Umi Latifah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 799/2017

[2018] HKCFI 1841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 799 of 2017

BETWEEN

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 the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant originally submitted a non-refoulement (“NRF”) claim by way of written representation under CIDTP on 17 and 20 May 2010, whilst detained at Castle Peak Bay Immigration Centre (CPIC”).  A removal order was served upon her on 26 May 2010, which was the subject of an appeal dated 27 May 2010.  She was released upon recognisance on 22 June 2010.

2.The Applicant was required to attend a screening interview on 15 February 2012, which she failed to attend without reason.  The Applicant also failed to report upon her recognisance on 13 March 2012 and was considered to have absconded.

3.On 23 September 2013, the Applicant submitted a further NRF by way of written representation to the Immigration Department whilst incarcerated at Lo Wu Correctional Institution. Having served her sentence, she was released upon recognisance once more on 21 May 2014.  The screening process commenced under the USM on 19 June and the Applicant was provided with an interpreter and the services of a Duty lawyer. Despite several reminders, the Applicant did not submit her NRF and therefore her claim was deemed withdrawn as of 8 August 2014.

4.On 11 November 2015, the Applicant made a claim under CIDTP, which was deemed to be a request to re-open her original claim.  By letters dated 13 November and 1 December 2015, she was required to provide information in support of such a request.  She did not do so.  It was incumbent upon the Applicant to show there were circumstances beyond her control which caused her failure to return the NRF on time.  She failed to do so.  The Director of Immigration (“the Director”) dismissed her claim on all grounds by Notice of Decision (“the Decision”) on 16 December 2015.  She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Mr Yung Yiu-wing, heard her on 24 July and 15 September 2017.  The Adjudicator refused her appeal on 13 October 2017.

5.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 October 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Decision of the Director

6.The Applicant seeks to review the Decisions of both the Director and the Adjudicator.  As the Applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with.

Decision of the Adjudicator

7.The Adjudicator arranged for two separate oral hearings.  He outlined the Applicant’s dealings with the Director in detail and treated it as a re-hearing.  At the hearing the only reason put forward by the Applicant as to why she failed to submit her NRF form was that she had lost it due to moving constantly.

8.He correctly set out the relevant law and key legal principles in respect of the Director’s decision not to allow late filing of the NRF and he considered afresh the grounds for the Applicant’s failure to submit on time.  There was a discretion within the power of the Adjudicator to allow such a filing if it could be shown that the failure to submit had been to reasons beyond the control of the Applicant.  This was not the case.  The Applicant says she had lost the form and did not approach anyone, either the DLS or the Immigration Department, in order to obtain a further one.  The Adjudicator properly took account of the risk of harm to the Applicant of his decision if he were to refuse her appeal which would mean the end of the process and her inevitable refoulement, but noted that she had been in Hong Kong for some 10 years and that the risk to her had not worsened and had most probably lessened.

Leave to apply for Judicial Review

9.Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator in respect of the failure of the Applicant to submit her NRF within time.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with her application in order to obtain leave to judicially review them.

Grounds of Review

10.This Applicant has submitted identical Grounds of review as two other applicants.  The Applicant submitted the following grounds:

1) The Director (and presumably the Adjudicator) failed to consider the concept of state acquiescence, or extended state acquiescence;

2) he made insufficient enquiry;

3) failed to provide adequate reasons as to the decisions made;

4) failed to investigate the COI material;

5) failed to place weight on relevant information;

6) placed weight on irrelevant information;

7) failed to consider a consistent system of human rights violations;

8) placed weight on irrelevant matters, or on inaccurate or incorrect facts;

9) failed to call for psychological or psychiatric reports;

10) applied the incorrect standard of proof;

11) provided no reasonable basis for rejecting the Applicant’s credibility;

12) the decision maker was not the interviewer; and

13) there was no proper basis for consideration of internal relocation.

11.In so submitting, the Applicant adopted a scatter gun approach apparently adopting as many general points as he could find without any evidential support.  The Applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  Merely reciting oft cited phrases is of little use to the court without more.  I can find no connection whatsoever between these grounds and the issue of filing within time and the refusal to extend that time.  They are entirely without merit.  I have nevertheless gone on to consider whether there is any evidence of unlawfulness, unreasonableness or unfairness by those bodies in their consideration of that issue.

Conclusion

12.I have considered the papers, grounds and submissions carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour, whether in person or in writing, with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state her case and enquired into that case appropriately on the available information.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

13.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.

Dated 12^th day of November 2018.

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