Case Document

100%Judiciary

HCAL 867/2019

[2021] HKCFI 1949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 867 of 2019

BETWEEN

	Araliya Kankanamge Nadeep Suranga	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	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;

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his letter dated 25 February 2019 (the “2019 Letter”). As explained below, the Director has not made any decision in any letter dated 25 February 2019 relating to the Applicant. The Director had made a decision in a Notice of Decision dated 13 October 2017 refusing the Applicant’s claims for non-refoulement protection (the “Notice”). The 2019 Letter was a reply to the Applicant’s request for a copy of that Notice. From his supporting affirmation, it is also obvious that the subject matter of the intended judicial review is the Notice and not the 2019 Letter. If the Applicant seeks judicial review of the Notice, he is one year and two months late.

Background

2.The Applicant is a Sri Lankan national. He made a torture claim on 3 November 2005 (the “Previous Claim”). After about six years, he submitted a letter on 5 September 2011 to withdraw his Previous Claim. His Previous Claim was treated as withdrawn on 15 September 2011 and he left Hong Kong on 3 November 2011.

3.Then, he returned to Hong Kong and made written representations dated 20 August 2015, 2 October 2015, 2 December 2015, 7 April 2017 and 21 July 2017 seeking to have his non-refoulement claim assessed under the Unified Screening Mechanism (“USM”). He claimed that his life was in danger as he had political problems with the Unified People’s Freedom Alliance arising out of his assistance in the political activities of the United National Party.

4.Under section 37ZE of the Immigration Ordinance, a claimant who has made a torture claim and withdrawn it before it is decided may ask for it to be re-opened if he provides sufficient evidence in writing to the satisfaction of an immigration officer that:

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim.

Pursuant to that section, on 14 September 2017 the immigration officer requested the Applicant to provide information and elaborate his change of circumstances by 21 September 2017. The Applicant did not respond.

5.Having considered the materials submitted in support of his Previous Claim, his representations and all the circumstances, the immigration officer was of the view that the Applicant had failed to provide sufficient evidence to show that there has been a change of circumstances since his Previous Claim was withdrawn and that the alleged change of circumstances as raised in his written representations when taken together with the materials previously submitted in support of his Previous Claim, would give his subsequent claim a realistic prospect of success. Hence the immigration officer issued the Notice dated 13 October 2017 on behalf of the Director rejecting the Applicant’s claim under the USM.

6.On 2 February 2018, the Applicant wrote to the Immigration Department apologising for having to lodge a late petition to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) because he did not receive the Notice of Further Decision[1] due to his change of address. He said he was aggrieved by the decision and complained that he did not have legal representation.

7.On 5 March 2018, he wrote to the Immigration Department again repeating the threat he received. He said he was married in 2014 to a girl he met while in Hong Kong, that she went to Hong Kong to work as a foreign domestic helper, and that she gave birth to their child in October 2015.

8.On 8 February 2019, he wrote to the Immigration Department requesting for a copy of the Notice as he wanted to appeal to the Board against the decision in the Notice. He said he had been to the secretariat of the Board on that day, but the secretariat refused to accept his notice of appeal because he did not have the relevant document and he was advised to request for the document from the Immigration Department.

9.On 12 February 2019, in response to his request, the immigration officer sent the Applicant a copy of the Notice.

10.On 19 February 2019, the Applicant wrote to the Immigration Department again. He said he had not received the Notice and wanted to appeal to the Board.

11.On 25 February 2019, the immigration officer referred to his letter dated 12 February 2019 and sent the Applicant a second copy of the Notice.

12.On 29 March 2019, instead of appealing to the Board, the Applicant filed his notice of application for leave to apply for judicial review (Form 86). In his supporting affirmation, he said he had given many written submissions to the Immigration Department, but the Immigration Department refused his claims. He said that the Immigration Department gave him an appeal form but “they” also refused to take the form and gave it back to him. He enclosed 27 pages of exhibits, including a notice of appeal to the Board dated 11 February 2019 which presumably was the “appeal form” he mentioned and which the Board refused to accept from him because he could not produce the Notice which he intended to appeal against.

Procedural history

13.The procedural history appeared to be as follows. The Applicant made a torture claim application in 2005. He withdrew the application and returned to his home country in 2011. He married in 2014. His wife went to Hong Kong to work as a foreign domestic helper. Round about that time, he came to Hong Kong to seek non-refoulement protection. His wife gave birth to their child in October 2015.

14.In September 2017, the Applicant was asked to produce additional information in support of the change in circumstances to justify re-opening his application for non-refoulement protection. He did not respond. The immigration officer rejected his application and issued the Notice on 13 October 2017. The Applicant did not receive the Notice due to his change of address. He has to bear the consequence of any delay caused by the ineffectiveness of the address he gave to the Immigration Department: Re Karamjit Singh[2].

15.The Applicant said he learned about the Notice when he made his regular reporting to the Immigration Department before February 2018. He knew he had to appeal to the Board. He was given a notice of appeal to the Board by the staff of the Immigration Department, which he exhibited in his affirmation. He then let the matter sleep for a year.

16.Thereafter, he made some visits to the secretariat of the Board, probably in February 2019. He was informed that he had to produce some documents from the Immigration Department before the Board would accept his notice of appeal. He wrote to the Immigration Department on 8 and 19 February 2019 asking for a copy of the Notice. The Immigration Department sent him a copy of the Notice on 12 February and again on 25 February 2019.

17.He admitted that he had received the Notice before he went to the secretariat to lodge his notice of appeal. However, he was adamant that the secretariat refused to accept his appeal because he could not produce documents. When asked what documents he was asked to produce, he said they were documents to support his problem in Sri Lanka and he needed time to produce them. In the Court’s view, what he needed to lodge an appeal was the Notice from the Director rejecting his non-refoulement claims. Even assuming that he acted on some misunderstandings, the Applicant knew there was in place an appellate procedure to appeal the decision of the Director in the Notice to the Board, and not to seek judicial review of his decision by the Court. Instead of showing the Notice to the secretariat and properly lodging his notice of appeal to the Board, the Applicant chose to file an application for leave to apply for judicial review of the decision of the Director in the Notice of Decision.

Disposition

18.The Applicant’s application is badly misconceived. He sought leave to apply for judicial review of the decision of the Director in his 2019 Letter. The Director has not made any decision relating to the Applicant in that letter. In that letter, the immigration officer only gave him a copy of the Notice dated 13 October 2017. For this reason alone, the Applicant’s application must be dismissed.

19.If the Applicant intended to seek leave to apply in respect of the Director’s decision in the Notice dated 13 October 2017, he is badly out of time by one year and two months. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. Good reason requires at least a valid explanation for the delay and merits in the substantive application: AW v Director of Immigration and William Lam[3].

20.The Applicant offered no explanation for the long delay of one year and two months. All that he could say was that the secretariat of the Board required him to produce supporting documents which he needed time to obtain. From the procedural history, it can be seen that the Applicant just slept on the matter for a year after knowing of the Notice.

21.As for merits, insofar as the Applicant sought to challenge the Director’s decision and findings of facts in the Notice, it should be noted that the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4]. This Court could not replace the Director’s findings of facts with that of its own.

22.There is no dispute that the Applicant had made a Previous Claim and withdrew it. There is no dispute that he provided no additional information to support a change of circumstances to justify re-opening his application for non-refoulement protection. He might not have received the Director’s invitation to provide information due to his change of address. He has to bear the consequence for any delay caused by his failure to notify the Director of his change of address.

23.Having rigorously examined the Notice, the papers and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer had correctly referred to section 37ZE. It was on that basis that the immigration officer found there was no factual basis to support the Applicant’s claims for re-opening his application for non-refoulement protection. These are findings of facts which are exclusively within the province of the Director as the decision maker, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The decision in the Notice was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review of the decision of the Director in his Notice of Decision dated 13 October 2017. If the Applicant really wished to challenge the decision of the immigration officer, he should invoke appeal procedures by appealing to the Board. The Board will hear the appeal by way of a rehearing and make its own finding of facts.

Conclusion

24.There is absolutely no basis to apply for judicial review of the 2019 Letter and no merits in an application to review the Director’s decision in the Notice. Were the Applicant able to give a valid explanation for the delay and merits in a judicial review of the Director’s decision in the Notice, the Court would have granted him leave to amend the Form 86 and leave to apply for judicial review of the Director’s decision in the Notice. For reasons as explained above, leave to apply for judicial review was refused.

Dated the 6^thday of July 2021.

	(Sammi Wu)
	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 his solicitors must:
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)).		Sent to the Applicant on 6 July 2021 Araliya Kankanamge Nadeep Suranga Applicant’s ref. no: Nil.		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 6 July 2021 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: (4) in L/M(27) to TCAB/1-20/1 Pt.13 Director of Immigration Putative Interested Party’s ref. no.: L/M (8672) in ImmD RA 7/37/C Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)