Dinh Thi Van v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1205/2018

[2021] HKCFI 510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1205 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 submission by the Applicant 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 Vietnam.  For easy reference, I will first quote the procedural history summarized by the Adjudicator of the Board as follows:

Date	Event
27 October 2015	Appellant lodged her claim
24 February 2016	Screening of the claim began by Immigration Department (“ImmD”), Appellant informed of requirement of returning her completed NCF to ImmD by 23 March 2016
16 March 2016	ImmD wrote to Duty Lawyer Service the requirement for return of completed NCF by 23 March 2016
23 March 2016	ImmD allowed Duty Lawyer Service request for extension of time to 13 April 2016 for NCF to be returned
24 March 2016	Appellant was released on recognizance
11 April 2016	Letter sent to remind Appellant to return completed NCF by 13 April 2016
14 April 2016	Claim was deemed by statue to have been withdrawn
25 May 2016	Appellant wrote re fear of harm by “Brother Hung”
15 June 2016	ImmD informed Appellant of statutory requirement to show “circumstances beyond control” before her claim could be considered for re-opening
15 June 2016 to 22 September 2017	Appellant had not stated what the “circumstances beyond control” were (if any)
22 September 2017	Appellant wrote to say she had borrowed money from gangsters, and a typhoon had destroyed her fish
10 October 2017	Appellant wrote providing a new story i.e. that her husband had borrowed money from gangsters and had beaten her, and triads had threatened to kill her
12 October 2017	Appellant wrote repeating her story of 2 days ago
15 December 2017	ImmD informed Appellant that claim could not be re-opened
27 December 2017	Appellant appealed to the TCAB: In Part 2 of the Notice of Appeal/ Petition she only wrote a summary of her alleged facts as written to ImmD on 10 October 2017

The Director’s decision

3.It can also be seen from the Director’s decision that, in view of the applicant’s failure to return the completed non-refoulement claim form (“NCF”) within the time limit, her application for non-refoulement protection was “treated as withdrawn” by the Director on 14 April 2016.  She was then notified of the result by a “Notice of Deemed Withdrawal” together with its Vietnamese translation, dated 6 May 2016, sent to her last reported address by post.

4.By a letter of 25 May 2016, the applicant wrote to the Director to lodge again a non-refoulement claim on grounds of her fear of being killed by a gangster due to her inability to settle the loan made by her family, if she was refouled.  By a letter of 15 June 2016, the Director informed the applicant that if she wished to apply to re-open her non-refoulement claim, she should provide sufficient evidence that she had not been able to return the NCF due to circumstances beyond her control.  Nothing was received from the applicant and the Director took no further action in the matter.

5.After a lapse of over one year, the applicant submitted again various letters to the Director repeating her claim.  By a letter of 24 October 2017, the Director advised the applicant to seek advice from the Duty Lawyer Service regarding her application of re-opening her non-refoulement claim if she wished.

6.By a Notice of Decision dated 15 December 2017, the Director eventually decided not to re-open her non-refoulement claim, for the reason that she failed to provide sufficient evidence in writing to support that her failure to return the completed NCF within the time limit was due to circumstances beyond her control.  The applicant appealed to the Board against that decision.

The Board’s decision

7.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:

“3. It is abundantly clear from what has happened that the Appellant has failed to provide a completed NCF by the statutory prescribed date, hence the claim was deemed to have been withdrawn. The Appellant requested the Director to re-open the claim, and the Director, who found no basis to re-open, refused the request. The Appellant appealed to the TCAB, but has not addressed any of the statutory required issues.

4. Section 37ZG provides 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).

And Section 37Y(2) states that a completed NCF must be returned to the Director within 28 days from the Director’s request unless the Director grants an extension of time.

6. At no time has the Appellant stated any “circumstances beyond her control” in failing to return a completed NCF to ImmD. The case has dragged on for 2 years. As the Court of Appeal has said, “The time and resources spent on these cases is immense. It is to the interest of all parties that these cases should be disposed of promptly and efficiently”: AW v Director of Immigration CACV 63/2015.

7. The circumstances of this case show no error on the part of the Director in refusing to re-open the case which has long been deemed to be withdrawn. The Appellant has never shown over a period of 2 years any “circumstances beyond her control” and there was simply no basis for the claim to be re-opened.

8. For the above reasons the appeal is dismissed and the decision of the Director, dated 15 December 2017, is hereby confirmed.”

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 27 June 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.  In her affirmation in support, she only stated “I am afraid that my creditor and his subordinates could have inflicted more serious harm, even would kill me, had they intended to do.”

9.The applicant did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

10.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.  

11.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).”

12.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.” (emphasis added)

13.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.

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

15.Significantly, after the non-refoulement claim was treated as withdrawn, the claimant may re-open his/her application if he/she 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).

16.As can be seen from these statutory provisions, a 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”) since March 2014, is a most important document to begin the screening process of a non-refoulement claim.  A non-refoulement claimant is under a statutory duty to provide the form as required by the Director within the time limit.

17.In the present case, the applicant apparently adopted a cavalier attitude in her non-refoulement claim.  According to records, she first lodged her claim by a written representation dated 27 October 2015 and the screening process of her claim began on 24 February 2016.  She was given a briefing session and informed of the consequence of any failure to return the NCF.  She was also referred to the Duty Lawyer Service (“DLS”).  The DLS applied for extension of time for her to submit her NCF for 21 days and the Director acceded to the request.  However, by letter of 8 April 2016, the DLS informed the Director that they were unable to contact the applicant and had no instructions to act for her.  By letter of 11 April 2016 sent to her last reported address, the applicant was reminded to return the NCF on or before 13 April 2016 and warned of the consequence of her failure to do so.  Thereafter, repeated attempts were made to contact her by phone but in vain.  As she failed to return the NCF within the time limit, her non-refoulement claim was treated as having been withdrawn on 14 April 2016.

18.The Director had followed the proper procedure and given every opportunity to the applicant to submit the NCF.  The applicant was referred to the DLS and repeatedly warned of the consequence of her failure to return the NCF within the time limit.  Even assuming she was in any difficulties in submitting the form, she could have informed the DLS and the Director for assistance or extension of time.  She did not return the NCF at all, nor did she contact the DLS or the Director.  The Director properly treated her application as withdrawn under s 37ZG (1) of the Immigration Ordinance.  The applicant was then duly informed of the Director’s Notice of Deemed withdrawal.

19.In the exchange of correspondence between the Director and the applicant from 25 May 2016 to 12 October 2017, she was requested to explain with sufficient evidence in writing for her failure to return the NCF within the time limit.  She was also advised to seek advice from the DLS.  At no time she told the Director any “circumstances beyond her control” in failing to return the NCF.

20.In the absence of any explanation or any evidence in writing from the applicant, I agree that the applicant had failed to provide sufficient evidence in writing to satisfy an immigration officer that the reason why she had not been able to return the completed NCF within the time limit was due to circumstances beyond her control.  I agree with the Board that there was no error on the part of the Director in refusing to re-open her claim.

21.I notice that 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.

22.As the Board noted in the Notice of Appeal filed with the Board, the applicant still did not provide her NCF or any reason why the NCF was not provided within the time limit.  In the circumstances, I do not find the course adopted by the Board to be irregular or unfair.

23.Indeed, even now the Form 86 and affirmation in support do not show any explanation for her failure to provide the NCF. There was no challenge with regard to procedural regularity and fairness. The applicant only repeated her fear that she would be harmed by her creditor.  The repetition of her claimed fear without evidence in support cannot constitute a viable ground for judicial review.

24.In the circumstances, I do not find any reasonably arguable basis for the applicant’s intended challenge.

25.Indeed, the applicant’s conduct by her repeated neglect of her statutory duty to provide the NCFwas more consistent with someone evincing an intention to abuse the process than the reaction of one in genuine fear of his/her safety.  It seriously affected the credibility of her claim.  There is no evidence in support of her claimed risk of harm.  I cannot see any merit in her claim.

26.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 their decisions. Nor is there any failure on their part to apply high standards of fairness in their consideration. Their decisions are not Wednesbury unreasonable.  

Disposition

27.For the reasons given, there is no prospect of success in the applicant’s intended application. Accordingly, the application for leave to apply for judicial review is refused.

Dated 11 March 2021

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