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HCAL 1253/2018
[2021] HKCFI 602
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1253 OF 2018
BETWEEN
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Ali Majid |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
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consideration of the documents only; or |
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consideration of the documents and oral submissions by the Applicant in open court. |
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 20 October 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. I shall deal with his application for extension of time to file the application for leave to apply for judicial review below.
2.This application seeks to obtain leave to have judicial review against the Board’s Decision for affirming the decision of the Director of the Immigration Department (the “Director”) not to allow him to re-open his application for non-refoulement claim under the special circumstances, which will be set out below.
3.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.
4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.
The applicant
5.The applicant lodged his torture claim on 20 August 2009. Almost four years later, the Immigration Department (“the Department”) processed his application on 27 May 2013. It was due to a series of incidents where the Department requested him to submit the Torture Claim Form (“TCF”) under section 37Y of the Immigration Ordinance, Cap.115 (the “Ordinance”) and he did not comply with the requests, the immigration officer refused to re-open his application for non-refoulement claim.
6.To date, there are no materials from the applicant in support of his non-refoulement claim.
7.Before considering the applicant’s conducts, I shall set out the relevant statutory provisions under the Ordinance in relation to the request for the TCF.
The relevant statutory provisions for the TCF
8.The applicant must comply with the immigration officer’s written request to return to him the TCF within 28 days after the written request is given to him.
37Y. Submission of torture claim form
(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
9.Under 37ZG(1) of the Ordinance, 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).
10.The applicant may apply to re-open the claim pursuant to section 37ZG.
37ZG. Deemed withdrawal of torture claim on failure to return completed torture claim form
(3) 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).
The Director’s Decision
11.By letter dated 21 July 2017 (the “Director’s Decision”), the Director refused to re-open the applicant’s application for non-refoulement under the following circumstances.
(1) On 27 May 2013, the immigration officer requested, in writing, the applicant to submit his TCF. The applicant was legally represented under the Duty Lawyers Scheme (“DLS”).
(2) On 21 June 2013, the DLS informed the Director that they had no instructions to act for the applicant further. The immigration officer was unable to have contact with him.
(3) By a written notice dated 25 June 2013, the Director informed the applicant that his application was treated as withdrawn.
(4) On 20 December 2013, the Director received a letter from the applicant dated 14 December 2013 asking the Director to close his torture claim and he applied for BOR 3 risk claim.
(5) Two brief sessions were arranged for him on 8 September and 29 September 2014. On both sessions, the applicant failed to attend without prior notice.
(6) On 7 January 2015, the applicant was located at Tai Lam Correctional Institution. The applicant was given the Supplementary Claim Form (“SCF”) and he was legally represented under the DLS.
(7) On 2 March 2015, his lawyer asked for an extension of time to submit the SCF and time was extended to 17 March 2015.
(8) On 17 March 2015, the DLS informed the Director that they could not act for him because they could not obtain instructions from the applicant.
(9) By a letter dated 25 March 2015 to the applicant, his application under BOR 3 was treated as withdrawn for his failure to submit the SCF.
(10) On 15 August 2015, the applicant applied for re-opening his non-refoulement claim. By three separate letters respectively dated 12 August, 11 September and 17 September 2015, the Director required the applicant to provide information why he did not return the completed SCF within the time and other information such as and special circumstances by reason of which it would be unjust not to re-open his claim. The applicant did not provide the information required.
(11) The applicant was interviewed on 17 September 2015. He told the immigration officer that he had been detained by police and he was reluctant to disclose other information other than that he could not return the SCF because he forgot to do so on the first occasion and on the second occasion, he was under the influence of drug.
(12) His request for re-opening his non-refoulement claim was allowed. A brief session was arranged for him on 27 October 2015. He asked for a postponement. The briefing session was re-scheduled to 18 November 2015. However, he did not turn up on that day and he could not be contacted since then.
(13) It was discovered that he was detained in prison since 17 March 2016. He was located on 15 July 2016. A written notice dated 5 August 2016 was served on him informing him that his application for re-opening of his non-refoulement claim was treated as withdrawn because he failed to submit the SCF.
(14) The Director then received two letters from the lawyer of the applicant respectively dated 15 August 2016 and 18 August 2016 requesting for extension of time for submission of the SCF. The deadline was extended to 9 September 2016.
(15) On 8 September 2016, the DLS informed the Director that they could not act for the applicant as no further instruction was received from him.
(16) On 22 September 2016, the Director served a letter on the applicant that his non-refoulement claim on applicable grounds other than risk of torture had been treated as withdrawn on 10 September 2016.
(17) On 14 June 2017, the applicant wrote to the Director to request for re-opening of his non-refoulement claim.
(18) By letter dated 26 June 2017, the Director asked the applicant to provide explanation as to why he was unable to return the completed SCF and other information to support his request.
(19) The applicant made a written submission dated 19 July 2017, in which he said that he did not return the completed SCF because he was struggling for his living and accommodation and he was addicted to drug and alcohol and his property was stolen. He intended to obtain some further documents from his friend in Yuan Long. But he could not contact his friend. The documents would tell that his enemies in Pakistan were more powerful and they caused trouble to his family. Finally, he denied having been informed of the Director’s notice treating his non-refoulement claim as withdrawn.
(20) Having considered the applicant’s submissions, the Director finally refused to re-open his non-refoulement claim, which was treated as withdrawn on 10 September 2016.
12.The applicant appealed to the Board on the Director’s Decision.
The Board’s Decision
13.Having considered the factual circumstances above, the Board came to the findings:
“23. His conduct was outrageous. The Immigration Department should not have entertained all his applications. It is an abuse of the process and a waste of manpower from the Immigration Department and the DLS. ,… …
24. The Petitioner had already been given indulgence by the Immigration Department by reasons of his own admission that he was involved in crime and drug and being an alcoholic. There is no reason why the Immigration Department should give him further indulgence on those grounds.
25. I am at a loss as to why the Immigration Department could tolerate and gave him all the chances to apply for re-opening of his claim. He should have been repatriated much earlier.
25. As reasons aforesaid, this petition is dismissed.”
DISCUSSION
14.The applicant has not stated in his affirmation the reasons or explanation for his delay in filing this application. Order 53, rule 4 of the RHC does not spell out those criteria above in the text. Those criteria are set out in other cases by the courts. The applicant is not legally represented. I shall, nevertheless, consider the merits of his case to determine whether time should be extended for his application for leave for judicial review.
15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
16.The Board has assessed the factual situations leading to the Director’s refusal to re-open the applicant’s non-refoulement claim.
17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13.… … Assessment of evidence … … are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
18.The applicant has not stated under what grounds that the Board was wrong in reaching its decisions.
19.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
20.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.
CONCLUSION
21.I therefore refuse to grant extension of time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 8th day of March 2021
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(M. O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 8 March 2021
Ali Majid
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8 March 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8048/17/8/86/P1579
Director of Immigration
Putative Interested Party’s ref. no.:
L/M (16670) in ImmD RA 7/37/C
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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