Rintan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2133/2019

[2022] HKCFI 2148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2133 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.   The extension of time for the application for Judicial Review be refused; and

2.   The application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 11 August 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant put down the date of the Board’s Decision as 4 March 2019. There is no such document on the file. This error will be rectified below. The application by Form 86 filed on  25 July 2019 is late.[1] This issue will also be dealt with 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, the Director of Immigration (“the Director”) is the interested party and the date of the Board’s Decision is 11 August 2017 instead of 4 March 2019.

The Director’s refusal to reopen the applicant’s non-refoulement claim

4.The applicant is a national of Indonesia.  She had previously lodged a torture claim which was rejected on 3 June 2013.  Her subsequent appeal against the dismissal was also refused by the Board on 27 March 2014.  Later, she lodged a non-refoulement claim which was to be assessed on all applicable grounds other than the torture risk[2] under the unified screening mechanism.  The relevant events could be chronicled as follows:

(1)  On 11 August 2014, the applicant was briefed, with the assistance of an interpreter, that she was required to return the completed supplementary claim form (“SCF”) within 28 days unless a further extension was granted.  She was duly informed the consequence of her failure to return SCF on time, namely, her non-refoulement claim would be treated as withdrawn [3];

(2)  On the same date, the applicant was referred to the duty lawyer service (“DLS”);

(3)  On 15 August 2014, the DLS informed the Immigration Department that they could not contact the applicant.  She had not accepted the DLS’s legal assistance [4];

(4)  On 19 August 2014, after the telephone conversation with the Immigration Department, the applicant agreed to attend the Immigration Department on 20 August 2014 so that she could receive the DLS assistance.  Nevertheless, the applicant did not attend as agreed and also failed to report for recognizance since 29 August 2014 [5]; 

(5)  On 1 September 2014 and 22 September 2014, by way of letters with translations, the Immigration Department urged the applicant to return the SCF on or before 29 September 2014 [6];

(6)  On 30 September 2014, absent for the applicant’s SCF and her application for extension, the Immigration Department treated the applicant’s non-refoulement claim as withdrawn;

(7)  On 14 October 2014, the Notice of Deemed Withdrawal of Non-refoulement Claim on Failure to Return Completed SCF was sent to the applicant’s last known address [6];    

5.By way of written representations dated 1 March 2017 and 2 March 2017 respectively, the applicant expressed her intention of reopening her non-refoulement claim [8].

6.In the applicant’s written representations, she simply stated that she would face risk of harm if refouled.  She also mentioned that she had been in custody since 25 February 2017.  In her letter received by the Immigration Department on 13 March 2017, she again repeated her claim.  In her premature notice of appeal/petition filed to the Board, the applicant stated that the reason of failure to return the SCF was that (i) she was afraid she would be returned to Indonesia; (ii) she lost her cellphone and thus lost the contact with DLS; and (iii) she was afraid that the police would arrest her [10]-[13].

7.The Director probed into whether there were circumstances beyond the applicant’s control preventing her from returning the completed SCF on time [14].  The Director noted that the applicant did not take the endeavor to approach the Immigration Department.  In particular, she failed to attend the Immigration Department on 20 August 2014 despite agreeing to do so in the telephone conversation a day before and she also absconded from reporting for recognizance since 29 August 2014 [16].  As to the applicant’s explanation that she lost her contact with the DLS, the Director found that she must be aware of the DLS’s office as she had been there.  If she had the real intention of reaching out, she could have done so without difficulties [17]. 

8.As a result, on 17 March 2017, the Director concluded that the applicant failed to provide sufficient evidence to show that she failed to return the SCF because of circumstances beyond her control.  Therefore, the Director refused her request to reopen her non-refoulement claim.

The Board’s Decision

9.The applicant appealed the Director’s refusal to the Board.  In her notice of appeal/petition dated 14 March 2017, the applicant repeated her claim and her reasons for not returning the SCF on time [12].

10.Having considered the procedural history mentioned above, in its decision rendered without an oral hearing, the Board refused to reopen the applicant’s non-refoulement claim.  In brevity, the Board found that none of the applicant’s explanations, presented either before the Director or the Board, had amounted to sufficient evidence showing that there were circumstances beyond the applicant’s control.  As a result, the Board concluded that the Director was justified to refuse the applicant’s request as the requirement under section 37ZG (3) of the Immigration Ordinance was not met.[3] The applicant’s appeal was there dismissed.      

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

11.The applicant has filed Form 86 dated 25 July 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her statement attached to her Form 86, the applicant set out the grounds, which are irrelevant to her case as she has not submitted her supplementary claim form to the Director for consideration. Nevertheless, I shall set out those grounds below.

(1)  The Director and the Board are wrong in their decisions.

(2)  The Director did not consider state acquiescence in her case.

(3)  The adjudicator had placed too much weight on the country of origin information without considering her personal background.

(4)  The Director had not considered her case’s facts before coming to his decision.

(5)  The Director had failed to attain the high standards of fairness.

(6)  The adjudicator was unreasonable as the applicant was told to answer questions which she is unable to answer and had failed to consider the nexus of political parties and corruption of the administration.

(7)  The adjudicator’s decision is irrational.

DISCUSSION

13.As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merits of the applicant’s case.

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.The grounds in paragraph 12 above are irrelevant to her case. She has not submitted her supplementary claim form and there was no hearing before the Board. The Board only considered the reasons for the Director refusing to re-open her case. There are no valid grounds to challenge the Board’s Decision.

18.The Court does not find any fault with the Board in reaching the Board’s Decision.

19.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 26^th day of July 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