Mughal Zia Ur Rehman v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 781/2018

[2020] HKCFI 2694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 781 OF 2018

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/ the Applicant being absent in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing to re-open the applicant’s claim of non-refoulement protection.

2.The applicant is a national of Pakistan.  The detailed facts of the case and the procedural history were stated by the Adjudicator of the Board as follows:

1.   The Director of Immigration (“Director”) by a Notice of Decision dated 5 December 2016 rejected the Petitioner’s claim under Section 37ZG of the Immigration Ordinance, Cap 115, (the “Ordinance”) …when he failed to return a completed Supplementary Claim Form (“SCF”) within the prescribed 28 days, as required under Section 37Y(2) of the Ordinance.  The Petitioner lodged a petition to the Non-refoulement Claims Petition Office against the Director’s decision not to re-open his non-refoulement claim.

Background

2.   The Petitioner previously lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (now referred to Part VIIC of Ordinance) which had been rejected by the Director on 30 August 2012.

3.   The Petitioner subsequently applied for non-refoulement protection on applicable grounds other than torture risk under Part VIIC of the Ordinance, and his claim was considered under the Unified Screening Mechanism (“USM”) which commenced operation on 3 March 2014.

4.   The screening process of the Petitioner’s non-refoulement claim began on 17 August 2016 when the Petitioner was served in the Castle Peak Bay Immigration Centre (“CIC”) with (inter alia) a Notice, a SCF and a letter dated 17 August 2016 which clearly stated that he was required to return the completed SCF to the Director within 28 days, that is, on or before 14 September 2016.  The Petitioned was also verbally informed of the requirement to return the completed SCF on or before the deadline on 14 September 2016.

5.   The Petitioner refused to sign an acknowledgement for the documents served on him.

6.   The Petitioner also made no indication whether he would want to seek the assistance of …(“DLS”).

7.   By letter dated 7 September 2016 sent by post to the Petitioner at the Lai Chi Kok Reception Centre (“LCKRC”), together with its Urdu translation, the Petitioner was reminded …that if he failed to return his completed SCF as required, his non-refoulement claim would be treated as withdrawn after the expiry of the deadline.

8.   …the deadline for returning the completed SCF was extended for 14 days to 28 September 2016. …The Petitioner was also advised to seek legal advice from his legal representatives, whenever necessary.

9.   By letter dated 20 September 2016 sent by post to the Petitioner at Hei Ling Chau Correctional Institution (“HLCCI”), together with its Urdu translation, the Petitioner was further reminded to return the completed SCF on or before the deadline on 28 September 2016, and that the screening interview was scheduled on 3 November 2016.

10.   On 29 September 2016, the Director received the Petitioner’s letter dated 23 September 2016 written in English which read, “I can’t answer or produce any supplementary claim form/documents to you.  I am in a hard time now and am too concern about my current case.  I am so sophacated (sic) in here, and my condition of health is abnormal.  Before you coming here 3^rd November 2016, I would like you to know I cannot provide any documents or doing the screening interview.  So far that been the case I would you to know that as soon as I release from prison or C.I.C., I come to Kowloon bay and do the screening interview and answer the (S.C.F.) as well.”  The Petitioner also claimed that “Am now in hei ling chau Correctional Institution 18C serving my prison term.  I will be release from 7 november, 2016, it is also delay for me to receive your letter.  I hope you understand the situation am going through.  I’m very sorry for any Inconvenience or time waisting (sic).  I will surely come to Kowloon bay after my release from prison and C.I.C.  Please consider my request.”

11.   On 7 October 2016, a letter to the Petitioner of the same date was read to the Petitioner in person, with the assistance of an Urdu interpreter, at HLCCI, and amongst other contents, the Petitioner was reminded of his duty as a claimant that “you must complete the non-refoulement claim form in English or Chinese to provide all grounds and facts in support of your claim…”  As regarding the Petitioner’s claimed difficulty in producing supporting documents, the Petitioner was advised that “If the documentary evidence or any other document(s) is not readily available and may only be submitted after returning this form, you must, upon return of the completed form, clearly indicate in writing of your intention to submit further supporting document(s) at a later stage.  Depending on individual circumstances, you will be given a reasonable opportunity to submit further supporting document(s) after returning this completed form.”

12.   It was made clear to the Petitioner that his detention in the correctional institution and inability to provide supporting documents were not considered sound reasons for not completing and returning a revised SCF upon the Director’s request, and would not be justification not to proceed on his non- refoulement claim.

13.   The Petitioner was also informed that the mention of his health being abnormal in the correctional services institution was not supported by objective information that he was unable to complete and return the SFC due to health reason.  He was advised that if he needed to make an application for extension of time to complete the SFC on ground of illness, he had to make the application before the expiry of the deadline and his request was required to be supported with sufficient medical proof.

14.   The Petitioner was informed that in view of the circumstances of his case, the Director had extended the deadline for him to complete and return the SCF to 21 October 2016.

15.   The Petitioner was informed that if he had any special needs relating to the completion of the SCF and/ or further enquiries in relation to the processing of his non-refoulement claim, he might contact his case officer.  He was also given the contact details of the DLS, and informed that he could seek legal advice and help from the DLS.

16.   The Petitioner refused to sign an acknowledgment of receipt of the letter handed to him in person on 7 October 2016.

17.   On the same day when the Petitioner was served with the Director’s letter on 7 October 2016, the Director received the Petitioner’s letter dated 3 October 2016.  It was written in English and which read “I do received (sic) the SCF too late at hei ling chau Correctional Institution.  The form has been sent to lai chi kok Reception Centre, whilst I already being transferred to hei ling chau Correctional Service”.  And “I cannot do any screening interview next month November, unless and until I got my release from prison/C.I.C.  That I will come and do the screening interview at Kowloon bay, skyline tower.  For now, I can’t fill any form or attain (sic) any screening interview because of my current situation and condition that am facing, I really cannot fill the form because of the late submission meaning that I do received the form very late and can’t really fill it within 28 days.  I would also like to fill the form after my release and will provide all the supporting documents needed.  My health condition in here is severely affected.  So please consider my request and hope to hear from you soon.  My date of realease (sic) is 7 November 2016.”

18.   The Director by letter dated 11 October 2016 sent by post to the Petitioner at HLCCI maintained the same stance and re-iterated the contents of what had been personally read and explained to the Petitioner in the Director’s letter dated 7 October 2016, and translated to him by an Urdu interpreter at the HLCCI on 7 October 2016, as detailed in paragraphs 10 to 14 above.

19.   The Petitioner did not return a completed SCF to the Director on or before the deadline on 21 October 2016.  Nor did he make an application for an extension of time to return the completed SCF on or before the deadline on 21 October 2016.  In view of the Petitioner’s failure to return the completed SCF as required within the time limit, his non-refoulement claim, other than the torture claim under Part VIIC of the Ordinance, was treated as having been withdrawn on 22 October 2016.

20.   By a written submission dated 9 November 2016, the Petitioner requested to re-open his non-refoulement claim.

21.   By letter dated 17 November 2016, the Director informed the Petitioner that …if he wished to apply to re-open his non-refoulement claim, he should provide sufficient evidence in writing to satisfy an immigration officer that he had not been able to return the completed SCF as required due to circumstances beyond his control.

22.   On 25 November 2016, the Director received the Petitioner’s written submission dated 22 November 2016 providing the following information to support the re-opening of his non-refoulement claim:

i.   at HLCCI, he requested for medical checkup and the doctor there conducted x-ray checks on him; and

ii.  he was not mentally properly ready to answer and complete his SCF.”

The Director’s decision

3.The Director refused the applicant’s application to re-open his non-refoulement claim, referring to his failure to submit any medical report/ certificate to support his claimed health problem.  On all available information given in his submission, and in the absence of any justifiable grounds, the Director was not satisfied that the he had provided sufficient evidence to show that he had not been able to return the completed SCF as required due to circumstances beyond his control.

The Board’s decision

4.The Board determined the appeal/ petition by the applicant without a hearing.  Having considered all the material before him, the Adjudicator of the Board found:

“Decision

26. Having carefully considered all the relevant issues in this petition, I decline to allow the Petitioner to re-open his non-refoulement claim application. The Petitioner …gave the reasons that he had requested a medical checkup and the doctor had conducted an x-ray on him, and that he was not mentally ready to complete the SCF. He had also expressed a clear intention not to complete the SCF while he was in the custody of the Correctional Services Department or the CIC, and he would only be ready to give answers and completed the SCF after his release from the custody of the Correctional Services Department or the CIC. No medical evidence to show that he was physically or mentally unwell, and incapable of completing the SCF had been submitted to support his claim. The Petitioner had also written letters in English to the Director and he had expressed himself well enough to be clearly understood in these letters, before the expiry of the time limit to return the SCF. As he was capable of writing letters in English coherently, there was no reason why he was not able to complete and return the SCF as required. The Petitioner had repeatedly been reminded by the Director that it was his obligation to return the completed SCF within the time limit specified, and the fact that he was in the custody of the Correctional Services Department, or the CIC, was not a valid reason for him not to complete and return the SCF to the Director within the prescribed time limit. He was also given an extension of time until 21 October 2016 to complete and return the SCF on 7 October 2016. Furthermore, he was referred to and advised to seek legal advice from the DLS, if he needed legal assistance. The reasons given by the Petitioner were plainly insufficient to support his application to re-open his non-refoulement claim. The Petitioner had therefore failed to provide sufficient evidence in writing to satisfy an immigration officer that the reason why he had not been able to return the completed SCF within the time limit was due to circumstances beyond his control…

27.   …The Petitioner had not provided sufficient evidence in writing to support his application to re-open his non-refoulement claim under Section 37ZG(3) of the Ordinance and paragraph 55 of the Notice.  Under these circumstances, the Director was justified to refuse the Petitioner’s application to re-open his non-refoulement claim.”

Application for leave to apply for judicial review

5.The applicant filed a Form 86 on 4 May 2018 for leave to apply for judicial review of the decision of the Board.  The Form did not set out any ground for the relief sought and the affirmation in support stated “I am not satisfied with the outcome of my USM Non-Refoulement claim which was dismissed and disposed off (sic) without proper screening and thorough investigation. For my life is still in great danger should I return to Pakistan.”

6.By a letter dated 20 May 2020 posted to his last updated address with the Immigration Department, the court invited the applicant to provide information including any submissions that he would like to make.  Since then, the applicant has not made any response or submission to the court.  The applicant did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

7.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The court in a judicial review exercises a supervisory role and its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board and will not interfere with its finding unless it is reversible on public law grounds.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

Application out of time

8.It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  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.  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.

9.The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.

10.In this case, the 3-month time limit expired on 4 November 2017 and the application was late by 6 months.  The delay was substantial, for which the applicant did not ask for extension or provide any explanation for the delay.  I do not see any satisfactory or valid reason for the undue delay.

Merits of the intended application

11.As for the merits of the intended application, I am of the view that the applicant has no prospect of success at all, let alone a case with realistic prospect of success.

12.The Immigration Ordinance imposes duties on the applicant to substantiate a torture claim.  The applicant must comply with the requirements provided under the Ordinance.  Section 37Y provides:

“(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 (emphasis added)

(b) within any further period that an immigration officer allows under subsection (3).”

13.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 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 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.”

14.Not only that such statutory provisions are applicable to torture claim, by virtue of the administrative provisions governing under the unified screening mechanism (USM), the same constraints are applicable for other non-refoulement claims: Ram Chander v Director of Immigration [2018] HKCA 585.

15.Paragraph 24 of the “The Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme” also effectively mirrors 37ZG of the Ordinance.

16.A torture claim form (TCF) includes a supplementary torture claim form (SCF) as specified by the Director.  A completed torture claim form must be returned within 28 days or any further period that an immigration officer allows: section 37Y(2).  Section 37ZG(1) further provides that 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).

17.After the claim was treated as withdrawn, the claimant may re-open his application if he 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…: Section 37ZG(3).

18.In the present case, the applicant’s first torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment had been rejected by the Director on 30 August 2012.  It appears that he did not appeal that decision of the Director.  He subsequently applied for non-refoulement protection again on applicable grounds other than torture risk under Part VIIC of the Ordinance.  He was then repeatedly reminded of his duty to return the SCF within the time limit specified.  He was told that his detention in the correctional institution and inability to provide supporting documents were not considered sound reasons for not completing and returning the SCF, there being no objective information that he was unable to complete and return the SCF due to health reasons.  He was advised that if he wanted to make an application for extension of time, his request was required to be supported by sufficient medical proof.  He was also reminded of his right to seek advice from the Duty Lawyer Service and their contact details were given to the applicant.  The time limit for returning the SCF was even extended twice to 21 October 2016.  The applicant still failed to return the required form before the time specified.

19.When the applicant applied to re-open his claim, he claimed he was “not mentally properly ready to answer and complete your SCF”.  Other than saying that he had x-ray check conducted on him, he did not provide any medical evidence about his physical or mental condition in support of his claim.

20.In my observation, the Director had followed the proper procedure and given every opportunity to the applicant to submit the SCF.  The applicant was also reminded that publicly-funded legal assistance was available to him and warned of the consequence of his failure to do so.  If he had indeed any difficulties in submitting the form, he could have informed the DLS and the Correctional Services for assistance.

21.He provided no medical evidence to support his claim that he was not physically or mentally fit to complete and return the SCF.  The fact that he was being in custody did not give him a right not to return the claim form required by law.  In any event, the time limit for him to return the form had been extended twice which was more than enough for him to complete and return the form.  When the applicant failed to return the SCF by the extended deadline without satisfactory explanation, the Director was entirely proper to treat his application as having been withdrawn.

22.In his application to re-open his claim, the applicant still failed to submit any medical report or evidence to support his claim that he was unable to return the SCF owing to his mental illness or health reason.  In the absence of any evidence in support of his claim, I agree with the Board that the applicant had failed to provide sufficient evidence in writing to satisfy an immigration officer that the reason why he had not been able to return the completed SCF within the time limit was due to circumstances beyond his control.

23.In the affirmation of the applicant, he complained that his non-refoulement claim was dismissed and disposed of without proper screening and thorough investigation.  The complaint has no merit.

24.The applicant’s torture claim had previously been considered and refused in August 2012.  His claim of fear was properly and thoroughly considered.  One of the reasons for the refusal was the viability of internal relocation for the applicant.  On that basis, there was no reason to provide him with international protection.  When the applicant failed to return the SCF after repeated warning of the consequence of the failure, the Director was entirely proper to treat his subsequent non-refoulement claim as withdrawn and refused to re-open his claim according to the statutory requirement.

25.The Board did not conduct an oral hearing.  I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277.  In the Notice of Appeal filed with the Board, the applicant still did not provide any medical evidence in support of his claim of inability to return the SCF.  Indeed, he mentioned nothing about his mental problem or the reason for his failure to return the required form before the specified deadline.  I do not find the course adopted by the Board to be irregular or unfair.

26.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

27.Even now, the Form 86 and affirmation do not show any valid explanation for his delay in submitting the claim form to the Director. There is also no cogent evidence or information to establish a substantial risk of harm that he might face.  Nor can I see that in the interests of justice his claim should be re-opened.

28.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 refusal to re-open the applicant’s claim.  Their decisions are not Wednesbury unreasonable.  I am not satisfied that the applicant has shown that there is any merit in his intended application.

Disposition

29.And in the absence of good reason for extending the period to make the application, I refuse extension of time to apply.  Accordingly, the application for leave to apply for judicial review is refused.

Dated 4 November 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