Ejaj Ahmed Mohammed v. Torture Claims Appeal Board and Another

HCAL 299/2018

[2019] HKCFI 2575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 299 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 the Torture Claims Appeal Board dated 12 April 2017 refused; and

2.  the application for 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.The Applicant is a national of India who lodged a torture claim with the Immigration Department on 12 December 2008 that he would be tortured if he were to be returned to India.  The process of his claim was subsequently suspended pending the implementation of the Unified Screening Mechanism (“USM”) into the statutory provisions for the making,processing and determination of torture claims under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”).

2.The relevant part of the provisions starts with section 37X which provides for the making of a torture claim, which upon the commencement of USM also applies to non-refoulement claim, as follows:

“ (1) A person who claims non-refoulement protection in Hong Kong on the ground of a torture risk must signify to an immigration officer in writing the person’s intention to seek non-refoulement protection.

(2) The written signification must give a general indication of the person’s reasons for claiming non-refoulement protection in Hong Kong, being reasons that relate to an act falling within the meaning of torture as defined by section 37U(1).

…”

3.Section 37Y then provides for the submission of the torture claim form (and since USM as well the non-refoulement claim form) as specified by the Director of Immigration (“the Director”):

“ (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.

4.As for the duties of a claimant to substantiate his torture claim or non-refoulement claim, section 37ZA provides 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.”

5.Section 37ZE also provides for the withdrawal of a torture claim by the claimant before it is decided and its effects, and how it may be re-opened on certain conditions:

“ (1) A claimant may, before a torture claim is decided under section 37ZI,withdraw the claim by notifying an immigration officer in writing.

(2) Subject to section 37ZF(3), a torture claim that has been 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—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re‑open the claim.

…”

6.Finally, section 37ZG provides that a torture claim may be deemed withdrawn if the claimant fails to return the completed torture claim form (or non-refoulement claim form where appropriate):

“ (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 torture 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.In the present case, after making his claim by a written signification but before it was processed, the Applicant on 18 May 2012 wrote to the Immigration Department to withdraw his torture claim under section 37ZE(1).

8.On 6 June 2012 the Immigration Department in writing informed the Applicant that his claim was treated as withdrawn and that no further action would be taken by the Department. 

9.About one month later on 16 July 2012 the Applicant wrote to the Immigration Department requesting to re-open his torture claim under section 37ZE(2), which was accepted by the Immigration Department, and upon the commencement of USM, his torture claim was then assessed as a non-refoulement claim.

10.On 14 August 2014 the Applicant attended a briefing session held by an immigration officer with the assistance of an interpreter at the Immigration Department during which he was given a Notice to Persons Making a Non-refoulement Claim, a blank Non-refoulement Claim Form (“NCF”) and a letter of the same date, and was briefed of the requirements and duties for him to return his completed NCF within the specified time limit and the consequences of his failure to do so as stated in the Notice, as well as an offer of legal representation from the Duty Lawyer Service (“DLS”).

11.On 22 August 2014 the Applicant in writing declined the legal representation from DLS and withdrew his non-refoulement claim, which was then treated as withdrawn by the immigration officer on 25 August 2014.

12.On 10 September 2014 the Applicant wrote to the Immigration Department and requested to re-open his non-refoulement claim, and on 17 September 2014 the immigration officer by a letter with interpretation required the Applicant to provide evidence and information for consideration of his request under section 37ZE.

13.The Applicant’s reply was received by the Immigration Department on 23 September 2014, and by a written notice dated 10 October 2014 the immigration officer informed the Applicant that his claim had been re-opened and that he was required to return his completed NCF on or before 7 November 2014.

14.On the same day the Applicant wrote to the Immigration Department requesting for assistance from DLS which was then referred to DLS.

15.On 16 October 2014 the Immigration Department was informed that the Applicant was legally represented by DLS when he was on the same day released on recognizance,and on 31 October 2014 the Director reminded DLS of the Applicant’s obligation to return his completed NCF by 7 November 2014.

16.The Applicant did not return his NCF by 7 November 2014 when on the same day DLS informed the Immigration Department that they did not have instructions from the Applicant in respect of his claim.

17.On 8 November 2014 the Immigration Department by written notice informed the Applicant that his non-refoulement claim had been treated as withdrawn under section 37ZG(1).

18.On 12 December 2014 the Applicant was arrested by police for a criminal offence for which he was subsequently convicted and sentenced to two weeks’ imprisonment.

19.On 24 December 2014 the Applicant wrote to the Immigration Department and requested to re-open his non-refoulement claim.

20.On 8 January 2015 the immigration officer in writing required the Applicant to provide information and evidence on or before 22 January 2015 including reason why he previously failed to return the completed NCF and any special circumstances why it would be unjust not to re-open his claim under section 37ZG(3).

21.On 27 January 2015 the Applicant replied to the immigration officer with the following information:

“ Here I would like to request for to reopen my U.S.M. claim due to my same problem that I had stated in my claim. I can not go back to my country because my life is still in danger if I return back my country India. Please help me and reopen my U.S.M. claim.”

22.On 30 January 2015 the immigration officer again in writing required the Applicant to provide further information and evidence in support of his case on or before 6 February 2015.

23.On the same day of 30 January 2015 the Applicant replied with the following information:

“ (A) I am not well educated and it is very difficult to read all the letters as they are in English language. Secondly I did not had transportation money to visit duty lawyer service is in Kowloon Bay.

(B) My problem remain same as stated before and I still face danger to my life if I go back. My enemies will kill me if I go back to India.

(C) I also want Duty Lawyer Service to assist me again.

So now I request you to reopen my U.S.M. claim.  I promise you I will fully cooperate with you.”

24.Apart from these two letters as noted above, no further document or information had since been received from the Applicant, and by a Notice of Decision dated 5 March 2015 the Director refused to re-open the Applicant’s non-refoulement claim under section 37ZG(5)upon finding his explanation for his failure to return his completed NCF within the required time or at all due to his language barrier and lack of transportation money to his duty lawyer not acceptable, or that they were circumstances beyond his control.

25.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which the Board scheduled an oral hearing for his appeal, but when the Applicant failed to attend the hearing or to provide any response to the Board’s subsequent request to an explanation for his absence, the Board proceeded to deal with his appeal in his absence and on paper.  On 12 April 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

26.In its decision the Board agreed with the Director that the Applicant had been given ample time and opportunities to return his completed NCF, and that with the assistances provided to him including interpretation, free legal representation from DLS and financial provisions from the government and/or relevant organization, that it was not satisfied that his claimed reasons for his failure to return his completed NCF were circumstances beyond his control.  

27.On 26 February 2018 the Applicant filed his Form 86 (dated 27 October 2017) 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 repeated his claim that his life is still in danger in his home country and that the Board refused his claim without solid proof, and that the Court should review his case.

28.By then the Applicant was seriously late with his application, 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.

29.As the last day of the three-month period for him to file his Form 86 fell on 12 July 2017, the Applicant was therefore 7 ½ 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 Re Thomas Lai [2014] 6 HKC 1;and AW v Director of Immigration [2016] 2 HKC 393.

30.In the Applicant’s case, a delay of more than 7 months must be considered as very substantial or excessive, for which he did not provide any explanation in his affirmation,and while it is noted that he was then being detained at the Castle Peak Bay Immigration Centre, in my view and in the absence of any further information from the Applicant, that by itself cannot be any valid reason for such a serious delay.  As such I do not accept that he has provided any good reason for his delay.

31.As for the merits of his intended application, as noted the Applicant has not provided any ground for seeking relief, and in the absence of which I am unable to see any reasonably arguable basis to challenge the finding of the Board that the reasons given by the Applicant for his failure to return his completed NCF were not circumstances beyond his control, and that in view of the ample time and opportunities already given to him to do so and the manners in which he had kept withdrawing and reopening his claim without any valid reason as pointed out by the Director, I am unable to find any fault with the decisions of the Director or the Board that there were indeed no special circumstances in his case to suggest that it would be unjust not to re-open his claim.

32.As a matter of fact, even up to now there is no indication whatsoever that he has completed his NCF despite being provided with one by the Immigration Department for him to do so some five years ago, and clearly to allow him to proceed with his application would no doubt have caused serious prejudice to public administration.

33.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 decisions not to re-open the Applicant’s non-refoulement claim.

34.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 serious delay, I refuse to extend time and accordingly his leave application is hereby dismissed.

Dated the 11^th day of December 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