Tariq Mehmood v. Torture Claims Appeal Board

HCAL 1282/2018

[2021] HKCFI 1191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1282 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 26 May 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 grounds of a torture claim must provide to the Director of Immigration (“Director”) all the necessary information relevant to the claim promptly and with full disclosure of all material facts in support of the claim, as stipulated in the relevant provisions in Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”), starting with Section 37ZA which set out the following duties of a 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.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”), and upon the commencement of the Unified Screening Mechanism (“USM”) since March 2014 for screening non-refoulement claimants on all the applicable grounds, the Non-refoulement Claim Form (“NCF”), of which Section 37Y of the Ordinance stipulates as follows:

“(1) A claimant must, on written request by an immigration officer -

(a) complete a torture claim form, and the completed form must –

(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.

(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 a completed TCF or NCF as so required, the claim must be treated as withdrawn, but may be re-opened upon certain conditions are complied with to the satisfaction of an immigration officer, as Section 37ZG of the Ordinance 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).

(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.”     

4.In the present case, the Applicant is a 50-year-old national of Pakistan who raised a torture claim with the Immigration Department on 8 May 2008 by way of a written representation on the basis that if he returned to Pakistan he would be harmed or killed by supporters of rival political party.

5.Upon the commencement of USM, his claim was later taken as a non-refoulement claim for which he was given a blank NCF on 25 November 2015 by the Immigration Department with written instructions to return his completed NCF on or before 23 December 2015. On the same day he was also given legal representation from the Duty Lawyer Service (“DLS”) for his claim.

6.On 16 December 2015 the Director wrote to remind him to return his completed NCF by 23 December 2015.

7.On 21 December 2015 his lawyer from DLS requested for extension of time for him to return his NCF due to difficulties in obtaining the service of an interpreter for his case.

8.By a letter dated 23 December 2015, the Director agreed to extend the time for him to return his completed NCF to 6 January 2016.

9.On 4 January 2016 his lawyer again requested for extension of time for his NCF due to the same difficulty with the interpreter service.

10.By a letter dated 6 January 2016 the Director again agreed to extend the time for the Applicant to return his NCF to 13 January 2016.

11.On 11 January 2016 his lawyer again for the same reason requested for further time to return his NCF.

12.By a letter dated 12 January 2016 the Director agreed to extend the time again for a further two weeks to 27 January 2016 for the Applicant to return his NCF.

13.On 25 January 2016 his lawyer informed the Director of no further instruction to act for the Applicant.

14.By a letter dated 5 February 2016 the Director informed the Applicant that due to his failure to return his completed NCF, his claim was treated as having been withdrawn, and that he may apply to re-open his claim under Section 37ZG(3) of the Ordinance by providing sufficient evidence in writing to satisfy an immigration officer that he had not been able to return his completed NCF due to circumstances beyond his control.  

15.Four months later on 6 June 2016 the Applicant in writing requested the Director to re-open his claim as he stated that he wanted to stay in Hong Kong and that he was sick on that day.

16.By a letter dated 8 June 2016 the Director required the Applicant to provide sufficient evidence in writing on or before 22 June 2016 to satisfy an immigration officer that he had not been able to return his completed NCF due to circumstances beyond his control.       

17.By a Notice of Decision dated 11 July 2016 the Director refused the Applicant’s request to re-open his claim in the absence of any response from him or evidence that he had been unable to return his completed NCF due to circumstances beyond his control.

18.In his decision the Director found the Applicant’s stated explanation that he “was sick on that day” without any further details or elaboration or evidence in support of such assertion not acceptable as circumstances beyond his control which rendered his failure to return his completed NCF on time or at all and did not justify re-opening of his claim. 

19.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not find necessary to conduct any oral hearing, and proceeded to deal with the appeal in his absence and on paper. On 26 May 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

20.In its decision the Board made the same finding as the Director that the Applicant had failed to provide any evidence in writing to satisfy an immigration officer that the reason why he had not been able to return the completed NCF within the prescribed time limit was due to circumstances beyond his control, and concluded that the Director was justified to refuse his request to re-open his claim.  

21.On 4 July 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 the same bare assertion that he first made to the Director back in 2008 that his life is in danger in his home country, and that he is not satisfied with the Board’s decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

22.He was by then also seriously late 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.

23.As the last day of the three-month period for him to file his Form 86 fell on 26 August 2017, the Applicant was therefore more than 10 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.

24.In the Applicant’s case, a delay of more than 10 months must be considered as very substantial and excessive, for which he did not provide any explanation either in his Form or supporting affirmation, and as the record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good or valid reason for his serious delay.

25.As for the merits, if any, of his intended application, as noted above the Applicant did not put forward any proper ground for his intended challenge either. As clearly found by both the Director and the Board, the Applicant had for no valid reason failed to comply with his most important duty under the statute noted above as a claimant to substantiate his non-refoulement claim by submitting his completed NCF despite being given ample and repeatedly extended times to do so and with legal representation from DLS.

26.In fact, even up to now in his present application and after more than 5 years when he was first required to do so, the Applicant has still not provided any completed NCF for his claim. As such and in the absence of any error of law or irrationality or procedural unfairness in the decisions of the Director or the Board being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis or merits in his intended application.       

27.In the premises and 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 irrationality or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

28.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 his serious delay, I refuse to extend time and dismiss his leave application.

Dated the 30^th day of April 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