Waseem Sohail v. Torture Claims Appeal Board

HCAL 1023/2018

[2020] HKCFI 3145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1023 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

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 11 August 2017 refused; and

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

Observations for the Applicant:

1.A person who claims non-refoulement protection in Hong Kong on the ground of a torture risk must provide to the Director of Immigration (“the Director”) all the necessary information relevant to the claim promptly and with full disclosure of all material facts in support of the claim as required by Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”), starting with section 37ZA which sets out the following duties of the claimant:

“(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.”  

2.One of the most important documents which the claimant is required to submit to the Director in support of the claim is the Torture Claim Form (“TCF”), or the Non-refoulement Claim Form (“NCF”) or Supplementary Claim Form (“SCF”) after the commencement of the Unified Screening Mechanism (“USM”) for enhanced screening of non-refoulement claimants on all the applicable grounds since March 2014, of which section 37Y of the Ordinance 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 the 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.In the event that a claimant fails to return the TCF, NCF or SCF as so required, the claim must be treated as withdrawn, but may be re-opened upon certain requirements being complied with by the claimant to the satisfaction of an immigration officer, as stipulated by section 37ZG of the Ordinance:

“(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.” 

4.In the present case, the Applicant is a national of Pakistan who first raised a torture claim in 2008 with the Immigration Department, then repeatedly withdrew and raised or re-opened his claim for the next several years without ever submitting any SCF as so required as set out in the following chronological events based on the eventual decision of the Torture Claims Appeal Board (“the Board”) which he now seeks leave to apply for judicial review:

-  18 November 2008 the Applicant by written signification raised his torture claim

-  13 January 2009 he withdrew his claim

-  5 July 2010 he raised his claim again

-  17 January 2014 the Duty Lawyer Service (“DLS”) acted for the Applicant in his claim which was taken as a non-refoulement claim

-  11 February 2014 the Applicant withdrew his claim via the DLS

-  22 July 2014 the Applicant raised his 3^rd non-refoulement claim

-  14 March 2016 his claim was treated by the Immigration Department as withdrawn as he could not be contacted

-  27 March 2016 the Applicant requested to re-open his claim

-  21 April 2016 DLS again acted for the Applicant who was required to submit his SCF for his claim on or before 7 June 2016

-  7 June 2016 DLS informed the Immigration Department that they had no further instruction to act for the Applicant who also failed to report to his recognizance

-  13 June 2016 the Immigration Department informed the Applicant that as he failed to submit his SCF that his claim was treated as withdrawn

-  22 and 24 September 2016 the Applicant requested to re-open his claim

-  4 October 2016 the Immigration Department required the Applicant to provide sufficient evidence in writing that he had not been able to return his SCF due to circumstances beyond his control

-  7 October 2016 the Applicant explained that he did not have travelling money for reporting on his recognizance

-  12 October 2016 the Immigration Department again required the Applicant to provide evidence for his failure to return his SCF

-  17 & 18 October 2016 the Applicant made submissions but failed to provide any information to demonstrate that his failure to return his SCF was due to circumstances beyond his control

-  20 October 2016 the Applicant provided further explanation that he was sick and could not leave his house to go to the hospital, that his wife only got medicine from the store for him, and hence he was unable to submit his SCF

-  26 October 2016 the Director by a Notice of Decision to the Applicant refused to re-open his claim          

5.In his decision the Director found no evidence in any of the Applicant’s earlier submissions of 22 & 24 September 2016 or 7, 17 & 18 October 2016 of any mention of his alleged sickness nor any further details or particulars or documentary evidence in support of his such assertion or any other difficulty or problem which may have prevented him from submitting his SCF or to inform DLS or the Immigration Department for help or that he was unable to submit his completed SCF due to circumstances beyond his control during the relevant period that his request to re-open his claim was rejected.

6.On 1 November 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which the Board did not find necessary to hold any oral hearing and proceeded to deal with the matter in the Applicant’s absence and on paper. On 11 August 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board gave the following reasons in finding that the Director was justified to refuse to re-open the Applicant’s claim:

“16. 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 failed to return a completed SCF resulting in his claim being deemed to be withdrawn under Section 37ZG(1) of the Ordinance and the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme on 8 June 2016. H then applied to re-open his claim on 22 September 2016. On 4 October 2016 and on 12 October 2016, the Director requested the Petitioner 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 as required was due to circumstances beyond his control. The Petitioner gave the reasons that he had no money to travel, and he was ill and could not leave the house for treatment, to support his request to re-open his non-refoulement claim. No detail as to what was his illness, how his illness had rendered him unable to complete and return the SCF, when and how long he was ill, were disclosed. No medical evidence was provided to support his claim. No reason was given as to why he or his wife did not contact the Immigration Department or the DLS for help, and to ask an extension of time to return the completed SCF. The reasons given by the Petitioner were too general and vague, and 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. It was under these circumstances that the Director refused the Petitioner’s application to re-open his non-refoulement claim.”

8.On 5 June 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 stated that he cannot go back to his home country because his life would still be in danger there but without putting forward any ground for his intended challenge, nor did he request for any oral hearing for his application. 

9.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, 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.

10.As the last day of the 3-month period for him to file his Form 86 fell on 11 November 2017, the Applicant was therefore almost 7 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.

11.In the Applicant’s case, a delay of almost 7 months must be considered as very substantial and excessive, for which he did not provide any explanation in his application or his supporting affirmation, and as the record shows that the decision was sent on the same day to his last reported address and has never been returned through undelivered post, I do not see any good reason for his serious delay.

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

13.Even now in his application before me, the Applicant has not produced his SCF either in draft or completed form despite the lapse of more than 4 years since when he was first required to do so when he was then also legally represented by DLS, nor has he provided sufficient evidence of any circumstances beyond his control that he was unable to do so, other than just a bare assertion of being sick without any particulars or evidence that both the Director and the Board were entirely correct in my judgment not to be so satisfied that it was such a circumstance which was beyond his control that notwithstanding all the time and opportunities given that he still failed to return what was the most important document for his claim as required by the Ordinance. As such and in the circumstances I do not find any reasonably arguable basis for his intended challenge.      

14.In the premises and 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 the Applicant’s serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 23^rd day of December 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