Sidhu Balbir Singh v. The Adjudicator of the Non-refoulement Claims Petition Office

HCAL 601/2018

[2019] HKCFI 815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 601 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 4 August 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.This is the applicant’s application for leave to apply for judicial review of the decision of the Torture Claim Appeal Board (“the Board”) in dismissing his appeal against the refusal of the Director of Immigration (“the Director”) to re-open his non-refoulement claim due to his persisted failure to return or submit his Supplementary Claim Form (“SCF”)within the required time. 

2.The applicant is a national of India who had previously made a torture claim with the Immigration Department on the basis that if he returned to India he would be harmed or killed by the family of his girlfriend who opposed their relationship and/or by the police as her brother was one of them.  After his torture claim was rejected by the Immigration Department, he raised a non-refoulement claim on the same basis, and was required to submit the SCF and to attend screening interview before the Immigration Department in order that his non-refoulement claim could be assessed under the applicable grounds other than torture risk including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“BOR 3 risk”) and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

3.Part VIIC of the Immigration Ordinance, Cap 115 has made provisions for the procedures relating to the making of such claim, and the provisions relevant to the making of a torture claim also apply to non-refoulement claim subsequent to the commencement of the Unified Screening Mechanism and are as follows.

4.Section 37Y:

“ (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 prescribed by the Director.”

5.Section 37ZA also sets out the duties of a claimant in making his or her claim 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 in either of those addresses as soon as practicable after the change.”

6.As for the failure of a claimant to return the completed torture claim form, section 37ZG provides that:

“ (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 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.”

7.As set out in the chronological details of the Director’s Notice of Decision dated 25 August 2016, from the date when the Director by written notice dated 2 June 2015 to the applicant requiring him to return his completed SCF within the required periods up to the time of his refusal to re-open the applicant’s non-refoulement claim, the applicant never returned his SCF to the Immigration Department despite having legal representation from the Duty Lawyer Service (“DLS”) and despite twice being deemed to have withdrawn his claim under the above rules but was subsequently allowed to re-open his claim with the same requirement to complete and return his SCF, and it was only on his third request to re-open his claim when he still failed to return his SCF within the required period that it was not accepted by the Director that it was due to circumstances beyond his control to do so after having been repeatedly reminded for more than one year for the following stated reasons:

(a) that his claimed sickness was not raised when he phoned the recognizance office on 2 June 2016 nor when he attended the office on 27 June 2016 when he collected the letter advising him of the deemed withdrawal of his claim and his right to apply to re-open his claim, and that it was only raised after his arrest by the police on 11 August 2016 and in his representations made on 18 and 19 August 2016;

(b) that his alleged lack of fund cannot be accepted as valid excuse for not contacting his lawyer from the DLS office or the Immigration Department; and

(c) that it was not true that the Immigration Office had told him to wait with his claim when he never contacted the Department except on 2 June 2016 when he was asked to report to the recognizance office as soon as possible but he only did so more than three weeks later on 27 June 2016, and thereafter he failed to report to recognizance office until his arrest by the police on 11 August 2016.

8.On 6 September 2016 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which the Board did not hold any oral hearing and dealt with the appeal in the absence of the applicant and on paper.  On 4 August 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found that the applicant had merely given his reasons for coming to Hong Kong for non-refoulement protection but did not provide any additional information for his failure to return his SCF, and upon reviewing his earlier explanations given to the Director, it agreed with the Director’s decision that the applicant has failed to provide sufficient evidence to satisfy the Director that due to circumstances beyond his control that he had been unable to return his completed SCF as required under section 37Y(2) of the Ordinance as stated above.

10.On 10 April 2018 the applicant filed his Form 86 (dated 5 March 2018) for leave to apply for judicial review of the Board’s decision, but no grounds for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that his life would be in danger if refouled to his home country and that he should be allowed to re-open his claim.

11.Nor did he attend the scheduled hearing of his application or provided any explanation for his non-appearance.  His application was however way outside the stipulated period within which it was required to be filed, as 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.

12.As the last day of the three-month period for the applicant to file his Form 86 fell on 4 November 2017, he was therefore more than five 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

13.In the applicant’s case, a delay of more than five months must be regarded as substantial, for which he did not provide any explanation either in his Form 86 or his supporting affirmation, and as he failed to attend the oral hearing of his application, there was no opportunity to extract any explanation from him either.

14.As for the merits of his intended application, again in the absence of any grounds proposed by him or of any legal error or procedural unfairness or irrationality identified in the Board’s decision, I do not see any reasonably arguable ground or any prospect of success in his intended challenge.

15.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 and assessment of the applicant’s claim.  As a matter of fact, even up to now the applicant has not submitted or produced his SCF.

16.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason for his substantial delay, I refuse to extend time and accordingly his application is dismissed.

Dated the 20^th day of September 2019.

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