Bangash Shmas Ur Rehman v. Ronald Cheung, Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 179/2018

[2018] HKCFI 2815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 179 of 2018

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a national of Pakistan who entered Hong Kong illegally probably sometime in 2007 and was arrested by police on 6 May 2007.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by members of the political party Tehrik- e-Istiqlal (“TeI”).  He has since been released on recognizance pending the determination of his claim. 

2.For the next nine years or so the applicant made a series of withdrawing and re-opening of his claim that eventually led to the Director of Immigration (“the Director”)’s final decision on 23 June 2016 to refuse the re-opening of his claim, against which the applicant then appealed to the Torture Claims Appeal Board (“the Board”), and I propose to adopt the following chronology of events from the Board’s decision to illustrate the long history of the manners the applicant had proceeded with his claim before the Immigration Department as follows:

3.By four letters sent on various occasions in May 2016, the applicant put forward the following explanations for his failure to return his NCF to the Director:

(1)  that he had been waiting for his home country to supply the necessary documents in support of his claim and asked for further two months to wait for them;

(2)  that he had lost his mobile phone and was unable to contact DLS;

(3)  that he needed to take care of his brother who had been sick in the hospital;

(4)  that he had been remanded in the Lai Chi Kok Correctional Institution for remaining in Hong Kong illegally; and

(5)  that his life was in danger as his enemies were still after him.

4.By a Notice of Decision dated 23 June 2016 the Director in his detailed analysis and reasons as set out in paragraphs 10 – 16 found that the applicant had failed to provide sufficient evidence to his satisfaction that he had not been able to return the completed NCF due to circumstances beyond his control despite a lapse of more than three months since his request for further time through DLS, and refused to allow him to re-open his claim.

5.On 6 January 2017 the applicant lodged an appeal to the Board against the Director’s decision, for which he was some six months late as section 37ZS of Part VIIC of the Immigration Ordinance provides that the notice of appeal must be filed within 14 days after the notice of decision is given to the applicant unless its late filing is allowed by the Board, and for which the applicant explained that the Director’s decision was sent to the Lai Chi Kok Centre where he was detained earlier but as he had since been released and he therefore did not receive it until much later.

6.Although the Board found it unclear as to exactly when the Director’s decision was in fact given to the applicant, it nevertheless allowed his late filing of the notice of appeal, and proceeded to deal with his appeal without any oral hearing.  On 5 January 2018 the Board dismissed his appeal and confirmed the Director’s decision.

7.In its decision the Board found that up to the date of the Director’s decision the applicant had failed to adduce sufficient evidence in writing to show that there were circumstances beyond his control that led to his failure to return his completed NCF to the Director within time, as those matters asserted in his explanations itemized above whether taken individually or collectively did not amount to such sufficient evidence, and while accepting that his younger brother’s illness was beyond his control and that he had to take care of him, he could have managed his time better to seek assistance of DLS to help him to complete and return his NCF within time, and that despite the loss of his mobile phone that he could still have been more proactive by approaching the DLS for assistance instead of waiting for them to contact him, and that he could have submitted his NCF without having to wait for those supporting documents from his home country which could be submitted later if and when they arrived. 

8.On 7 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  that the adjudicator failed to attain high standards of fairness required by the Wednesbury test as the applicant was not legally represented with no knowledge of the procedure and was under a lot of mental stress during his detention;

(2)  that the adjudicator failed to take into consideration that the applicant had a lot of difficulties reading and understanding English as it is not his native language;

(3)  that the adjudicator failed to make sufficient enquiry before finalizing the decision without a hearing; and

(4)  that the adjudicator failed to take into consideration that the applicant was obtaining relevant evidence from his home country and yet the adjudicator came to a decision without a hearing to allow sufficient time for him to submit his evidence.   

9.In the determination of an application to re-open a torture claim deemed as withdrawn, the relevant part of the Immigration Ordinance is section 37ZG which provides 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).”

10.As he explained in paragraphs 68 – 71 of his decision the adjudicator considered those explanations provided by the applicant properly and carefully and arrived at the same conclusion as the Director that the applicant failed to adduce sufficient evidence in writing to show that there were circumstances beyond his control that led to his failure to return his completed NCF within time.  In my judgment the adjudicator was entitled to do so on the evidence available and in the circumstances of the applicant’s case.

11.Against this the applicant has now put forward grounds which are just broad and vague assertions with a few key words and phrases but without any particulars or substance or elaboration as to how the adjudicator had erred in his decision, or what further enquiry that he should make before finalizing his decision, or what further evidence that he had intended to obtain from his home country, and despite back in May 2016 when he proposed to the Director for a further two months for him to obtain further evidence from his home country in support of his claim, even now he did not do so in his application before me after more than two years later, other than the claim that he had liver problem which he hoped to receive treatment here in Hong Kong.     

12.In the premises and having proceeded to consider 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 and assessment of the applicant’s claim.

13.In fact, given the history of the manners in which the applicant had proceeded with his claim as set out in the chronology above, of which both the Director and the adjudicator were perfectly entitled to take into account in their determination not to allow the applicant to re-open his claim, and in the circumstances there is no question in my judgment that the applicant had indeed been accorded with high standards of fairness throughout all the years.   

14.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 21^st 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