Pascua Joseph Christopher Flores v. Torture Claims Appeal Board

Case No.HCAL 339/2019[2022] HKCFI 1232

Court

High Court CFI

Date28 Apr 2022

Judge—

Case Document

100%Judiciary

HCAL 339/2019

[2022] HKCFI 1232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 339 of 2019

BETWEEN
	Pascua Joseph Christopher Flores	Applicant
	and
	Torture Claims Appeal Board	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 (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 2 October 2018 refused; and

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

Observations for the Applicant:

1.A torture or non-refoulement claimant may before his or her claim is decided withdraw the claim by notifying an immigration officer, and after it has been so withdrawn, it may only be re-opened upon the claimant satisfying the immigration officer on certain terms and conditions as required under Section 37ZE of the Immigration Ordinance, Cap 115 as follows:

“(1) A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2) Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that –

(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.

(3) If an immigration officer decides to re-open a person’s torture claim under subsection (2), the immigration officer must, by written notice, inform the person of the decision.

(4) 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.

…”

2.In the present case, the Applicant is a national of the Philippines who by a written signification dated 14 August 2014 to the Immigration Department raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by his creditor over his outstanding debts.

3.On 6 January 2016, the Immigration Department commenced the screening of the Applicant’s claim by providing him with legal representation from the Duty Lawyer Service (“DLS”) and requiring him to return his Non-refoulement Claim Form (“NCF”) setting out details of his claim by 24 February 2016.

4.Before the deadline for submitting his NCF, the Applicant on 23 February 2016 through his lawyer from DLS in writing withdrew his non-refoulement claim.

5.Less than 2 months later on 5 April 2016, the Applicant in writing requested to re-open his claim as he claimed to have planned to marry a local resident in Hong Kong who was expecting their child.

6.By a letter dated 19 April 2016 the Director of Immigration (“Director”) required the Applicant to provide sufficient evidence in writing that since the withdrawal of his claim there had been a change of circumstances that could not have been foreseen by him when he withdrew his claim, and that when taken together with the previous materials could increase the prospect of success of his claim.

7.On 27 April 2016 the Director received 2 letters from the Applicant in which he claimed to have a wife and a son in the Philippines, that his son had a rare disease for which he borrowed a loan for the medical expenses, that his creditor had threatened him over the outstanding loan, and that after his wife had subsequently passed away for which her family blamed him, he became afraid to return to the Philippines and therefore requested to re-open his claim.

8.By a written notice dated 28 June 2016 an immigration officer allowed the Applicant to re-open his claim, and required him to submit his NCF within a specified time.

9.However, one month later on 26 July 2016, the Applicant again through his lawyer from DLS in writing requested to withdraw his claim, which was accepted by the Director who confirmed that no further action would be taken on his claim.

10.On 5 May 2017 the Applicant again in writing requested to re-open his claim as he did not want to be deported, and that he wanted to remain in Hong Kong to be with his girlfriend and their three children.

11.By a letter dated 15 May 2017 the Director again required the Applicant to submit sufficient evidence to satisfy an immigration officer of his request to re-open his claim under Section 37ZE(2) as noted above, but no response had been received from the Applicant.

12.By a written notice dated 7 June 2017, the immigration officer refused to re-open the Applicant’s claim in the absence of sufficient evidence in writing from him that since the last withdrawal of his claim that there had been a change of circumstances that could not reasonably have been foreseen by him when he gave his last withdrawal notification and when taken together with his previous materials could increase the prospect of success of his claim, nor were there any special circumstances that would make it unjust not to re-open his claim.

13.On 10 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 23 April 2018 before the Board during which he gave evidence and answered questions raised of his appeal by the Adjudicator for the Board. On 2 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

14.In its decision the Board found the Applicant to have been manifestly unable to give any reason why he withdrew his claim on 26 July 2016 other than some unexplained and bare assertions that he felt pressure and was scared, that his claim that his girlfriend or their children cannot leave Hong Kong with him was unacceptable and unpersuasive, and that there were no other special circumstances such that it would be unjust not to re-open his claim.

15.On 4 February 2019 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 or in his supporting affidavit, nor did he request any oral hearing for his application.

16.By then the Applicant was also out of time with his application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day 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.

17.As the last day of the three-month period for him to file his Form 86 fell on 2 January 2019, the Applicant was therefore some 5 weeks 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.

18.In the Applicant’s case, a delay of almost 5 weeks must be considered as substantial and inordinate, for which he did not provided any explanation in his Form or affidavit, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his significant delay.

19.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge, and given his failure to provide any proper or acceptable explanation for his repeated withdrawals and re-openings of his claim, and in the absence of any evidence to show that since his last withdrawal that there had been a change of circumstances that could not have been foreseen by him over his plan to stay with his girlfriend and their three children in Hong Kong as evidenced by his answers to questions raised by the Adjudicator and recorded in the Board’s decision, the Board was in my view perfectly entitled, and was correct in my judgment, to find that there had been no change of circumstances which the Applicant could not reasonably have foreseen since his last withdrawal or that when taken together with the material previously submitted for his claim, of which I am unable to find any given that he had never submitted his NCF, that could increase the prospect of success of his claim, or that there were any special circumstances that would make it unjust not to re-open his claim.

20.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

21.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 procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of what appears to me a wholly futile request of the Applicant to re-open his claim.

22.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 28^th day of April 2022.

(K.H. LI)
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 28 April 2022 Pascua Joseph Christopher Flores 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 28 April 2022 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 8149/17/8/187/F419 Director of Immigration Putative Interested Party’s ref. no.: L/M (16414) in ImmD RA 7/37/C Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)