Gomez Genevive Canete v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 495/2019

[2022] HKCFI 904

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 495 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.         Time for the applicant to take out this applicant be extended;

2.         Leave for applicant to apply for judicial review of the Board’s Decision be granted; and

3.         The applicant has to take out the originating summons within 14 days after the grant of leave in accordance with Order 53, rule 5(5) of the RHC.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 19 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application filed on 20 February 2019 is late for 4 months. I shall deal with this issue below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.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’s non-refoulement claim

4.The applicant is a national of the Philippines.  She lodged a non-refoulement claim on 13 November 2016.  On 11 December 2017, the Director sent the applicant a “Notice to Persons Making a Non-refoulement Claim” and a blank non-refoulment claim form (“NCF”).  In the notice, the applicant was required to return the NCF within 28 days and she was also warned that failing to return the NCF within the time limit would result in a withdrawal of her non-refoulement claim.  In the premises, the applicant ought to submit the NCF on or before 30 January 2018 (“the Deadline”), unless an extension was granted.  The applicant also accepted a publicly-funded legal assistance provided by the pilot scheme office on the same date.

5.By a written request on 2 January 2018, the applicant was again reminded to return the NCF.  On the date of the Deadline, her legal representative informed the Director that she had not given any instruction to them as she was absent for the four scheduled meetings with them.  By a letter dated 2 February 2018, the applicant was informed that her non-refoulement claim was treated as withdrawn. 

6.By a letter dated 15 February 2018 from her legal representative, the applicant requested to reopen her non-refoulement claim.  She explained that (i) she lost her mobile phone on 19 January 2018 and thus lost contact with the legal representative, and (ii) she misunderstood the time of the meeting with her legal representative was on 12 February 2018 which in fact was the date of her screening interview with the Director.

The Director’s refusal to reopen her non-refoulement claim    

7.The issue before the Director was whether the applicant provided sufficient evidence to satisfy him that the failure to return the completed NCF on the Deadline was due to circumstances beyond her control so that a reopening of her non-refoulement claim was justified.

8.The Director rejected the applicant’s explanation on the bases that (i) despite she might have misunderstood the date of the meetings with her legal representative, she was aware of the obligation to return the completed NCF on 30 January 2018 in light of the brief session and the reminder; and (ii) she ought to be able to contact her legal representative despite the loss of her mobile phone if she intended to do so. 

9.As a result, by a decision dated 28 February 2018, the Director refused to reopen her non-refoulement claim (“the Director’s Decision”). 

The Board’s Decision

10.On 5 March 2018, the applicant filed an appeal against the Director’s Decision.  Having considered the documents, the Board decided that it was appropriate to deal with the applicant’s appeal on paper without an oral hearing. 

11.The Board observed that the applicant failed to explain why she missed four appointments with her legal representative and why no actions were taken when she received the Director’s reminder on 2 January 2018.  In the premises, the Board shared the view that the applicant was aware of the Deadline and she simply failed or did not intend to act on it.  Nor did the applicant attempt to contact her legal representative or inform them the change of her mobile phone. 

12.Thus, by a decision dated 19 July 2018 (“the Board’s Decision”), the Board concluded that there were no circumstances beyond the applicant’s control preventing her from returning the completed NCF within the time limit which could justify reopening of her non-refoulement claim.  As a result, the Board dismissed her appeal. 

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant filed Form 86 dated 20 February 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affidavit in support of her application, the applicant gave the following explanations:

(1)   that there was a misunderstanding of the date of the screening interview for the date of interview with her lawyer;

(2)   that she had lost her mobile phone on 19 January 2018 and therefore, she was unable to be contacted by her lawyer and she could not be contacted either for four meetings prior to the afternoon of 30 January 2018;

(3)   she was late in making this application because she was pregnant and had problem with the father of her son.

DISCUSSION

15.As mentioned in paragraph 1 above, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. Her delay is significant and serious. I shall first consider the prospect of the intended judicial review.

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.The issue for this application is to examine whether the Board’s Decision should be judicially reviewed.

18.The reasons for the Board to dismiss her appeal are these:

“10. Where a USM claim has been treated as withdrawn on failure to return a completed claim form, under s.37ZG of the Ordinance and paragraph 61 of the Department’s Notice to Persons Making a Non-refoulement Claim, the claim may be re-opened if the person provides sufficient evidence in writing to satisfy an Immigration Officer that due to circumstances beyond the person’s control, the person had not been to return a completed claim form.

11. The Appellant’s explanation that she thought the next meeting, with her representative was on 12 February 2018 does not explain why she missed four appointments with her representative and why she did not take any action when she received the Department’s reminder letter of 2 January 2018. …”

19.Pausing here, it will be important to point out the applicant’s legal representative’s letter dated 15 February 2018 to the Immigration Department, which explained why the applicant had missed four appointments:

“I enclose a copy of the letter dated 12^th February 2018 from the Claimant to me. From the letter, I realized that the Claimant had misunderstood at the initial conference held on 18^th December 2017 at the Pilot Scheme Office (“PSO”) that the next meeting would be held on 12^th February 2018 which, I did mention through the interpreter, was the date of the Screening Interview at your department. Worse still, the Claimant lost her mobile phone on 19 January 2018 and did not provide PSO (Pilot Scheme Office) with her new phone number thinking that she would appear again on 12^th February 2018. As a result, the Claimant could not be contacted by PSO (with interpretation service available) on my behalf for four meetings prior to the afternoon of 30^th January 2018.”

20.It appears that the adjudicator of the Board had not taken into account of the above solicitor’s letter. Whether or not the adjudicator accepts the explanation will be for her to decide. However, the fact that she had not taken into account material relevant for her consideration is a strong ground for the applicant to be successful in her intended judicial review of the Board’s Decision.

21.The applicant has shown that she has realistic prospect of success in her proposed judicial review. Despite the delay is significant, there is no evidence to show that the delay would unfairly prejudice the putative respondent.

CONCLUSION

22.I therefore extend time for the applicant to take out this application and I grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant has to take out the originating summons for this purpose within 14 days after the grant of leave in accordance with Order 53, rule 5(5) of the RHC.

Dated the 6^th day of April 2022

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