Sarabjit v. Torture Claims Appeal Board

HCAL 625/2018

[2020] HKCFI 2217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 625 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.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 8 September 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal against the decision of the Director of Immigration (“the Director”) refusing to re-open his non-refoulement claim deemed as withdrawn due to his failure to return a completed Non-refoulement Claim Form (“NCF”) in support of his claim within the stipulated period.

2.Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) set out the governing provisions for the making of a claim for non-refoulement protection in Hong Kong, starting with the requirement of the claimant to submit a Torture Claim Form, or the later NCF upon the subsequent commencement of the Unified Screening Mechanism (“USM”) for screening non-refoulement claimants on all the applicable grounds, of which Section 37Y provides as follows:

“ (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.”  

3.Section 37ZA of the Ordinance also sets out the following duties required of a claimant in respect of his or her claim:

“ (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.”

4.Any failure on the part of the claimant in respect of the above duties may result in the claim being treated as withdrawn, as stipulated by Section 37ZG of the Ordinance 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).

(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 reason 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.”

5.In the present case, the Applicant is a national of India who entered Hong Kong illegally on 8 October 2014 and was arrested by police on 2 November 2014.  After he was referred to the Immigration Department for investigation, he raised a claim for non-refoulement protection by way of a written representation on 4 November 2014 on the basis that if he returned to India he would be harmed or killed by his uncle over a land dispute. 

6.He was released on recognizance on 24 November 2014 but failed to report to the Immigration Department until 21 April 2015 claiming to be without money for transportation.

7.On 9 June 2015 he in writing requested to cancel his non-refoulement claim because he wanted to return to India.

8.By a letter dated 7 July 2015 the Immigration Department accepted the withdrawal of his claim and confirmed that no further action would be taken regarding his claim.

9.On 31 July 2015 the Applicant in writing to the Immigration Department requested to re-open his claim as his problem remained in his home country.

10.By a letter dated 11 August 2015 the Immigration Department accepted his request to re-open his claim but the Applicant again failed to report to his recognizance and was arrested by police on 6 October 2015 for theft for which he was given a fine.  Thereafter he again failed to report to his recognizance until his arrest by police on 3 February 2016.

11.On 20 February 2016 the Applicant was released on recognizance, but failed to attend a meeting with the immigration officer scheduled on 17 March 2016 for processing his claim without any explanation, and on 11 May 2016 he was informed in writing that no further action would be taken of his claim.

12.On 18 May 2016 the Applicant surrendered to the Immigration Department and requested to re-open his claim.

13.On 17 June 2016 he attended a briefing by the Immigration Department for the commencement of the screening process of his claim with the assistance of an interpreter, and was given a notice of the requirements for him to substantiate his claim together with a blank NCF with a stipulation to return its completed form within 28 days.  He was also referred to the Duty Lawyer Services (“DLS”) for legal representation on the same day.   

14.By letters dated 8 and 29 July 2016 the Immigration Department reminded the Applicant through DLS of the requirement to return the completed NCF on or before 5 August 2016, but he again failed to report to his recognizance since 20 June 2016, nor did he return his NCF by 5 August 2016 or at any time thereafter.

15.By a letter dated 15 August 2016 the Immigration Department informed the Applicant that his claim was as a result treated as withdrawn.

16.On 5 September 2016 the Applicant was again arrested by police for theft, for which he was subsequently convicted and imprisoned.

17.Upon his release the Applicant was referred to the Immigration Department when he again requested to re-open his claim.

18.By a letter dated 7 October 2016 the Immigration Department required the Applicant to provide information in support of his request under section 37ZG(3) of the Ordinance within 14 days on or before 21 October 2016.

19.By a letter dated 19 October 2016, the Applicant provided the following information:

“ I had a family problem. My sister had met a bus accident due to which I was very distressed. She has been passed away after staying in the emergency ward for two days, due to which we were in a big trauma and at that time my state of mind was not stable. My maternal grandmother died, due to the trauma of her young granddaughter’s death. These all happened all of sudden and due to this I was mentally stressed (upset) and forgot my interview. I promise you that I won’t make any of such mistakes like this time. I am highly grateful to you.”

20.By a Notice of Decision dated 4 November 2016 the Director refused the Applicant’s request to re-open his claim upon finding that his explanations stated above were not circumstances beyond his control, nor was there sufficient evidence to justify his failure to return his completed NCF in the circumstances of his case.

21.On 16 November 2016 the Applicant lodged his appeal to the Board against the Director’s decision, and in his Notice of Appeal he merely repeated his claim of fear of harm from his uncle over their dispute but provided no further information or evidence to justify that he had not been able to return his completed NCF due to circumstances beyond his control as required under section 37Y(2) of the Ordinance.

22.The Board proceeded to deal with his appeal on papers in the absence of the Applicant, and on 8 September 2017 it dismissed his appeal and confirmed the Director’s decision for the following reasons as stated in its decision:

“ 16. I am unable to disagree with the reasons given by the Director in rejecting the Appellant’s request for the re-opening of his claim. Even accepting that the Appellant had told the truth about the unfortunate death of his sister and grandmother, and further accepting that the Appellant would feel pain and stress, but in the absence of medical evidence, I could not accept that the Appellant would have completely forgotten about his claim because of the stress.

17. After all, the Appellant had been present in Hong Kong since October 2014, and whether he could succeed in staying here is presumably a matter of life and death for him, if what he said was true about his uncle’s threat. Against this background, the Appellant’s claim, and therefore the completion of the NCF, must be something that was of paramount importance to him.

18. Even if the specific deadline of the NCF had slipped from the Appellant’s mind, which was not impossible if he was really under stress, could he have forgotten that he had wanted to make a non-refoulement claim? The could not be the case, because the blank NCF should be a constant reminder of that. And if the Appellant had forgotten only about the deadline but not that he had made a claim, could he not approach the DLS or the Department for clarification? That should have been an easy step to take. In fact, a phone call may have been sufficient.

19. The further question would be, when did the Appellant come to recall the NCF and the deadline, and what did he do about it? The Appellant was arrested for theft on 5 September 2016 and was then transferred to the Department for further action on 27 September 2016. It was after that the Appellant had asked to re-open his claim. To say that he could only recall about the claim and the NCF after his arrest would be a defiance of common sense.

20. The fundamental point here is whether that the Appellant had provided sufficient evidence in writing to justify that he had not been able to return a completed NCF as required due to circumstances beyond his control. Given the conduct of the Appellant in relation to the claim, the circumstances showed more a case of him ignoring rather than forgetting his legal obligations.

21. The Appellant had written another letter to the Board dated 11 November 2016 attached to his Notice of Appeal/Petition, but the contents were really about why he made the non-refoulement claim.  The focus of the present application, however, is his failure to comply with the statutory requirement of submitting the completed NCF in time, and whether the failure was due to something beyond his control.  The Appellant had not provided any cogent evidence to satisfy the statutory requirement.  The application to re-open the claim must fail.”

23.On 12 April 2018 the Applicant filed his Form 86 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 he cannot go back to India as his life is still in danger there without putting forward any proper grounds for his intended challenge, nor did he request any oral hearing for his application.

24.He was by then also out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

25.As the last day of the three-month period for him to file his Form 86 fell on 8 December 2017, the Applicant was therefore 4 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: AW v Director of Immigration [2016] 2 HKC 393.

26.In the Applicant’s case, a delay of 4 months must be considered as substantial and excessive, for which he did not provide any explanation, and as the record shows that the Board’s decision was sent to him on the same day at his last reported address without being returned through undelivered mail, I do not see any good or proper reason for his serious delay.

27.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge.  As such and in the absence of any error of law or procedural unfairness in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.      

28.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

29.In the Applicant’s case, the Board refused his request to re-open his claim for the thorough and detailed analysis and reasoning as set out above, of which I do not find any error of law in the decision, and on the basis of the facts and material available before it including the Applicant’s conduct in relation to his claim since 2014 as noted above, of which the Board was entitled to take into account in its consideration of whether his failure to comply with the statutory requirement of submitting a completed NCF within the required period was due to circumstances beyond his control, and in the absence of such evidence from the Applicant to satisfy the statutory requirement, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

30.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 in extending time for his seriously late application, I accordingly refuse to extend time and dismiss his leave application.

Dated the 7^th day of September 2020. 

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