Hincapie Alzate Gilberto v. Torture Claims Appeal Board

HCAL 258/2021

[2021] HKCFI 1906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 258 of 2021

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 18 July 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Columbia who arrived in Hong Kong sometime in 2011 as a visitor but overstayed since 7 June 2011 and subsequently surrendered to the Immigration Department when he raised a torture claim, but before the process of his claim could commence with the usual briefing by an immigration officer, the Applicant could not be contacted by the Department.

2.Some 5 years later in 2016 he was arrested by police for the offence of theft, and for which he was convicted on 28 August 2016 and was sentenced to prison for 4 weeks.

3.Upon his discharge from prison and was transferred to the Immigration Department for deportation, the Applicant made a request for the re-open of his torture claim, for which he was released on recognizance, and attended a briefing session by an immigration officer on 13 December 2016 during which he was served with a Notice to Persons Making a Non-Refoulement Claim (“Notice”) and a Non-refoulement Claim Form (“NCF”) which he was required to complete and return to the Immigration Department within 28 days.

4.On 16 December 2016 he received legal representation from the Duty Lawyer Service (“DLS”) for his non-refoulement claim, and was reminded by a letter dated 3 January 2017 from the Immigration Department to complete and return his NCF within the period required, but on 4 January 2017 he failed to report on his recognizance and had absconded.

5.On 20 January 2017 DLS also informed the Immigration Department that they had ceased to represent the Applicant, and despite a further letter dated 23 January 2017 from the Department reminding him to return the completed NCF, the Applicant failed to do so by the deadline of 24 January 2017. By a written notice dated 26 January 2017 from the Director of Immigration (“Director”), the Applicant was informed that his non-refoulement claim was treated as withdrawn under the provisions of Section 37ZG of the Immigration Ordinance, Cap 115 (“Ordinance”).

6.On 24 April 2018 the Applicant again made a written request to re-open his claim, stating that he could not return to Colombia where his life would be in danger, and on 2 May 2018 he further provided in writing his reasons for failing to return his NCF in January 2017 in that his friend had made a complaint to the police against him in Hong Kong that he left his recognizance papers and the NCF in his friend’s place when he left, but as he was scared he therefore did not return to his friend’s place for the NCF, and that although he was aware that he could seek assistance from DLS or the Immigration Department, he was scared and did not do so either.

7.In the same letter the Applicant also disclosed some details about his non-refoulement claim in that he was part of a paramilitary group in Colombia and for which he had been sent to prison for 3 years, but that he had recently been told by his daughter that people of that paramilitary group were looking for him and hence he was afraid to return to Colombia.

8.By a Notice of Decision dated 21 May 2018 the Director refused to allow the Applicant’s request to re-open his non-refoulement claim for the reasons stated in paragraph 10 as follows:

“Based on the information provided in your written submission on 2 May 2018, you failed to return the NCF due to your worry. According to the record, you had failed to report the recognizance at the report office since January 2017. You said that you were being arrested by the Hong Kong Police in June 2017. There is no indication that you had been detained by any law enforcement agents before the said arrest in June 2017. Even you had left your NCF and form 8 at your friend’s house, you were free to seek assistance from the DLS or our department during the period from January to June 2017. However, you did not do so. Thus, it is not satisfied that your failure of returning the NCF was due to any circumstances beyond your control.”

9.On 28 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, in which he disclosed to being detained at the Castle Peak Bay Immigration Centre (“CIC”), and in Section 2 for Grounds of Appeal, he stated that he disagreed with the Director’s decision as he had been detained at CIC and had no access to any resources or internet so as to provide his evidence in support of his claim.

10.By a decision dated 18 July 2018 the Board dismissed the Applicant’s appeal as it agreed with the Director’s reasons for his decision as follows:

“20. Having carefully considered all the relevant issues in this appeal, I decline to allow the Appellant to re-open his non-refoulement claim application. The Appellant failed to return a completed NCF resulting in his claim being treated as withdrawn under Section 37ZG(1) of the Ordinance on 25 January 2017. He applied by written representation dated 24 April 2018 to re-open his non-refoulement claim. The Appellant’s explanation that he left the NCF and his recognizance paper (Form 8) at his friend’s place after his friend made a complaint to the police, and that he was scared, were insufficient reasons to show that he was unable to return the completed NCF due to circumstances beyond his control when he knew he was free to seek assistance from the DLS or directly approach the Immigration Department to get a blank NCF. He did not explain why he was scared. It was indeed his obligation to report on his recognizance and it was not sufficient reason for him to be scared for having absconded from reporting on his recognizance. According to his evidence, he was on recognizance at the relevant time until his arrest by the police in June 2017 for having absconded and failed to report on his recognizance since 4 January 2017. The Appellant had therefore failed to provide sufficient evidence in writing to satisfy an immigration officer that he had not been able to return the completed NCF within the time limit due to circumstances beyond his control. It was under these circumstances that the Director refused the Appellant’s application to re-open his non-refoulement claim.”

11.The Board then in applying the relevant rules and provisions arrived at its own conclusion in dismissing the Applicant’s appeal:

“23. The Appellant did not provide sufficient evidence in writing to support his application to re-open his non-refoulement claim under Section 37ZG(3) of the Ordinance, and under paragraph 55 of the Notice. He had therefore not provided sufficient evidence in writing to satisfy an immigration officer that he had not been able to submit the completed NCF as required due to circumstances beyond his control. Under these circumstances, the Director was justified to refuse the Appellant’s application to re-open his non-refoulement claim.”

12.On 1 March 2021 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 affidavit of the same date he merely stated that he is not satisfied with the decision as he does not want to return to his home country where his life would be in danger but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

13.By then the Applicant was also seriously out of time 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.

14.As the last day of the three-month period for him to file his Form 86 fell on 18 October 2018, the Applicant was therefore late by more than 2 years and 4 months 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 HKCA 393.

15.In the Applicant’s case, a delay of more than 2 years and 4 months must be considered as extremely substantial and excessive, for which he did not provide any explanation in his application or supporting affirmation, and as the record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, I do not see any good reason for his such serious delay.

16.As for the merits, if any, of his intended application, as noted above, the Applicant has failed to put forth any proper ground for his intended challenge of the Board’s decision. Nevertheless, in view of the seriousness of the issue at hand, the court shall adopt an enhanced standard in scrutinizing the Board’s decision in dismissing his appeal, starting first with a reference to the relevant Section 37ZG of the Immigration Ordinance with provisions for treating a torture claim as deemed withdrawn on failure to return a completed NCF and for its re-open 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 gicen.

(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.

…”

17.In the Applicant’s case, the Board was in the circumstances referred to above entitled and in the absence of any explanation from the Applicant entitled to find that being scared as alleged by the Applicant after his friend had made a complaint to the police was not a sufficient reason for him not to retrieve his NCF from his friend’s place or for him to fail to seek assistance from DLS or the Immigration Department for a fresh copy of the NCF so that he could proceed with his non-refoulement claim, which must plainly be one of momentous importance to him, and a situation in which his life and limb are in jeopardy, as he had claimed in his letter dated 2 May 2018 to the Director and in his Notice of Appeal to the Board that he would be at risk of being harmed or killed by those people from the paramilitary group of which he was once a member when he was in Colombia.

18.As he must also have been explained at the briefing session by the immigration officer back on 13 December 2016 that it was imperative for him to complete and return to the Immigration Department within the required period his NCF, which must be obvious to him as the most important document for him to substantiate his non-refoulement claim, which was also his duty as stipulated by Section 37ZA of the Ordinance but which was found by both the Director and the Board to have been failed by the Applicant to do so, and that his leaving behind of the NCF at his friend’s place was clearly not circumstances beyond his control under the situation as alleged by him, as again correctly found by both the Director and the Board in their decisions.

19.In the premises and having considered the decisions of 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 consideration and determination of the Applicant’s application to re-open his claim.

20.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 accordingly dismiss his leave application.

Dated the 30^th day of June 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