Magno Merry Khris Fonseca and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 480/2019

[2022] HKCFI 2704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 480 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 Applicants being absent in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The 1^st and the 2^nd applicants are mother and daughter. This is their joint application for leave to apply for judicial review of the Notice of the Decision dated 28 January 2019 of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The 1^st applicant requested oral hearing and hearing date was fixed for the applicants. However, they were absent without prior notice to the Court. In the circumstances, the Court decided to deal with their application on paper. The 2^nd applicant is a minor. Her application relies upon the 1^st applicant’s factual evidence as the basis.

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 relief sought is the Board’s Decision.

The applicants

4.The 1^st applicant is a national of the Philippines. The 2^nd applicant is her infant daughter born in February 2014. On behalf of herself and the 2^nd applicant, the 1^st applicant lodged non-refoulement claim with the Immigration Department. At that time, they were legally represented by a duty lawyer under the Duty Lawyers Scheme (“DLS”).

5.By way of a written representation of 11 August 2015, the applicants lodged their non-refoulement claim with the Immigration Department.

6.The Director sent a letter of 21 June 2016 to her duty lawyer requiring the applicants to return the completed Non-refoulement Claim Forms (“NFCs”) on or before 19 July 2016.

7.On 19 July 2016, the applicants’ duty lawyer asked for an extension of time for the return of the NFCs and time was extended to on or before 2 August 2016.

8.The applicants failed to return the completed NFCs by 2 August 2016. There was no application to the Director for extension of time. On the same day, DLS informed the Director that they did not have instructions from the applicants in respect of their claims.

The Director’s Decisions

9.By Notice of Deemed Withdrawal of Non-refoulement Claims on Failure to Return Completed Non-refoulement Claim Forms (“NDW”) dated 3 August 2016, the Director notified the applicants that their non-refoulement claim was deemed to have been withdrawn on 3 August 2016.

10.By way of written request of 7 October 2016, the applicants requested the Director to re-open their non-refoulement claims.

11.By Notice of Decision dated 30 November 2017, the Director agreed to re-open their claims. In this letter, the applicants were advised to seek DLS service and return the two completed revised NFCs (copies provided) to the Immigration Department at the address provided on or before 14 December 2017. The letter also advised the applicants to set out the facts and information in the NFCs and they would be invited to attend a screening interview with the immigration officer.

12.On 14 December 2017 and 27 December 2017, the DLS applied for extension of time for the applicants to submit the revised NFCs. Time was extended to on or before 11 January 2018.

13.The applicants failed to return the completed revised NFCs on 11 January 2018. On the same day, DLS informed the Immigration Department that they did not have instructions from the applicants and they were unable to further act for them.

14.By another NDW dated 12 January 2018, the Director notified the applicants that their non-refoulement were treated as withdrawn on 12 January 2018. In this NDW, the Director had also advised that they might apply to re-open their non-refoulement claims if they were able to satisfy the immigration officer that they were unable to return the completed NFCs as required due to circumstances beyond their control.

15.The applicants applied to the Director for re-opening of their non-refoulement claim. On 25 April 2018, the Director refused to re-open their non-refoulement claim. The applicants appealed to the Board.

The Board’s Decision

16.On 12 June 2018, the applicants applied for late filing of their Notice of Appeal (“NOA”).

17.The applicants’ reason for the late filing of the NOA is that they did not have the transportation money to go to the Board’s premises as they were not allowed to work.

18.The Board had considered section 37ZT of the Ordinance and the UK case of The Secretary of State for the Home Department v Begum (2016) ECWA Civ 122 (03 March 2016).

19.The Board did not accept the applicants’ reason for not being able to file their NOA within time. Therefore, by the Board’s Decision, the Board refused to extend time to file their NOA.

Application for leave to apply for judicial review

20.The applicants filed Form 86 on 19 February 2019 for leave to apply for judicial review of the Board’s Decision.

21.In the 1^st applicant’s affidavit in support of their joint application, the 1^st applicant said it is unsafe for her and her daughter to go back to the Philippines as they fear that their lives will be in danger.

DISCUSSION

22.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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

24.It is clear that the Board had considered facts leading to the Director’s Decisions of not re-opening the applicants’ non-refoulement claim and their reason for not being able to file their NOA within time under section 37ZT of the Ordinance.

25.The 1^st applicant has raised no valid ground to challenge the Board’s Decision.

26.The Court does not find any error of law, procedural unfairness or Wednesbury unreasonableness in the Board’s Decision.

27.The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

28.I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 6^th day of September 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