Waseem Mumtaz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 933/2017

[2018] HKCFI 2697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 933 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 allowed.

Observations for the Applicant:

Procedural history

1.The Applicant first made a claim by way of written representation on 3 January 2016.  It appears that he was thereafter represented by the Duty Lawyer Service (“DLS”) because the Director of Immigration (“the Director”) wrote to the DLS on 16 May 2016, requiring the Applicant to submit his non-refoulement claim form (“NRF”) within 28 days, which would have been 14 June 2016.  The DLS replied (two weeks later) on 31 May 2016, to say they had no instructions from the Applicant.  As a consequence, the Director wrote to the Applicant on 1 June 2016 requesting him to complete the NRF by 13 June.  That was not done and so the Director deemed the claim withdrawn as of 14 June 2016 and notified the Applicant of that fact by letter dated 16 June 2016.  Up to this date, the only address on the file before the court is 212B, 1/F, Kat Hing Wai, Kam Tin, Yuen Long.

2.The letter of 16 June 2016, must have reached the Applicant at that address, because he sent a letter dated 20 July 2016, in which he sought to re-open his claim.  The Director sought reasons for his earlier non-compliance, by way of a letter dated 11 August 2016, to which there was no reply.  It would appear from the file that this letter would have been addressed to a new address i.e. Rm A, 7/F, 458 Castle Peak Road, Cheung Sha Wan, presumably as a result of the letter of 20 July providing a different correspondence address.  In any event, and presumably because there had been no reply to his letter of 11 August, the Director informed the Applicant of his refusal to reopen his claim by way of a letter dated 7 September 2016.  This letter includes the notice that the Applicant must appeal that decision within 14 days if he intends to do so.

3.Nothing happens until 14 February 2017, at which time there appears to be a further request to re-open the claim.  The court presumes that the Applicant had moved once more because the Director replies on 16 February 2017, to a new address which is at Rm 8, 5/F, 283 Shah Tsui Road, Tsuen Wan.  In that letter, the Director outlined the previous history of the complaint.  He indicated that the Applicant had previously had 14 days to appeal the decision not to re-open the case and that the Applicant would now have to apply for late filing of that appeal. In response, and on 1 March 2017, the Applicant makes a rudimentary attempt to do so by way of a handwritten letter.  It is clear at this stage that he does not understand the procedure to be adopted nor has he the benefit of legal advice.  Unhelpfully, the Director responds by simply referring to and enclosing his letter of 16 February 2017, without more.

4.Some time passes.  On 11 May 2017, the Applicant makes a more professional attempt to communicate with the Director in the form of a claim under BOR 2.  It is clear that since his last correspondence he has sought help and the letter has obviously been drafted by someone else.  Nevertheless, the Director is having none of it and replies under cover of a letter of 7 June 2017, simply referring to and enclosing his letters of 7 September 2016 and 6 February 2017.  He did so, without explaining in simple terms that as the Applicant’s original claim had been deemed withdrawn and as his application to re-open that claim had been refused, that deemed withdrawal and refusal applied equally to any claim under BOR 2.  By this stage, the Applicant had also written to the TCAB.  Although there is no addressee block on the letter dated 12 May 2017, he has indicated in this correspondence that he received his rejection letter of 7 September 2016 on 16 February 2017 and that he had tried to seek the help from Immigration Department but had had to resort to obtaining a blank appeal form from a friend.  He indicated his wish to appeal.  The TCAB did not deign to reply to this cry for help.

5.No doubt in exasperation, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 November 2017.  He appears to be seeking to appeal a decision of the TCAB, which does not exist as there was no appeal.  Any judicial review of the refusal to re-open his case is out of time.  The Applicant did not ask to be heard on this application and therefore the matter was considered on the papers.

Leave to apply for judicial review

6.Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  In any event that application did not pass the first hurdle.  This application actually seeks to apply for leave to judicially review the decision of the Director who refused to re-open the Applicant’s case.  He could not have meant this application to be otherwise and he is not to be penalised for not understanding the procedure for judicial review.  Nevertheless, the Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Director when dealing with his application in order to obtain leave to judicially review him.

Grounds of review

7.There were no grounds of review.  The Applicant simply wishes to be heard.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  He has not been in a position to do so as he was shut out from the process from the beginning.  It is for the Applicant to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  The history of this matter indicates he is unable rather than unwilling to do so.  I have therefore considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

8.The Applicant’s background and the reasons for his original claim are not before the court.  It must not be forgotten that applications under the relevant legislation may include serious breaches of a person’s human rights and serious risk to life and limb.  It is not possible to analyse the strength of the Applicant’s case in this regard and it is not for the court to dismiss it as likely to be without merit.  There is no indication on the papers whether the merits of his original case, as outlined in his written representation, were ever considered by the Director or not.  What is clear, is that by 14 February 2017, the Applicant is without the benefit of legal assistance and from the letter of 1 March 2017, that he has no idea how he should be going about appealing the decision not to re-open his claim.  In the face of that obvious disability, neither the Director nor the TCAB dealt with the Applicant in a manner which is appropriate to someone who may be at risk.  The papers indicate no proper effort to ensure that the Applicant’s plea for assistance was being heard and he was left to his own devices in the certain knowledge he was not equipped to properly represent himself or progress his claim.  The door was bolted and bolted firmly and appears on the face of it to be unfair.

9.In my judgement, the Applicant’s claim, as interpreted, is reasonably arguable.  There is a realistic prospect of success. I grant leave for judicial review.

Dated 11^th day of December 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