Rafaqat Alias Rafaqat Makaram v. Torture Claims Appeal Board

HCAL 2486/2019

[2022] HKCFI 2802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2486 of 2019

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 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 24 December 2018 refused; and

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

Observations for the Applicant:

1.A person who claims non-refoulement protection in Hong Kong on the ground of a torture risk must provide to the Director of Immigration (“Director”) all the necessary information relevant to the claim promptly and with full disclosure of all material facts in support of the claim, as so stipulated by various sections of Part VIIC of the Immigration Ordinance, Cap 115, starting with Section 37ZA which sets out the following duties of the claimant:

“(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must –

(a) provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;

(b) comply with every requirement, procedure and condition (including any time limit) –

(i) prescribed by this Part; or

(ii) required or specified by any person under this Part.

(2) A claimant must provide to the Director and (on an appeal) to the Appeal Board –

(a) the claimant’s residential address in Hong Kong; and

(b) the claimant’s correspondence address in Hong Kong (if different from the residential address),

And must notify the Director and (on an appeal) the Appeal Board in writing of any change in either of those addresses as soon as practicable after the change.”

2.One of the most important documents which a claimant is required to submit to the Director in support of the claim is the Torture Claim Form (“TCF”), or the Non-refoulement Claim Form (“NCF”) in use after the commencement of the Unified Screening Mechanism (“USM”) since March 2014, or the Supplementary Claim Form (“SCF”) for use under all other applicable grounds after the rejection of an earlier torture claim, all for the sole purpose of presenting the relevant grounds of the claim together with the facts, information and evidence in support of such claim for non-refoulement protection within the required period for the proper assessment and determination by the Director, as provided by Section 37Y of the Ordinance:

“(1) A claimant must, on written request by an immigration officer –

(a) complete a torture claim form, and the completed form must –

(i) state the grounds of the claim and the facts supporting the claim; and

(ii) include such other information as is required by the form, and

(b) return the torture claim form so completed to an immigration officer at an address specified in the form, together with all the documents supporting the claim that are readily available to the claimant when the form is returned.

(2)  The claimant must return the completed torture claim form in accordance with subsection (1)(b) –

(a)  within the period of 28 days after a written request under subsection (1) is given to the claimant; or

(b)  within any further period that an immigration officer allows under subsection (3).

(3)  An immigration officer may –

(a)  on an application made by a claimant in writing before the expiry of a period for returning a completed torture claim form in respect of the claimant’s torture claim; and

(b)  on being satisfied that, by reason of special circumstances, it would be unjust not to allow a further period for the claimant to return the completed form,

allow a further period that the immigration officer considers appropriate for the claimant to return the completed form.

(4) The torture claim form is to be in a form specified by the Director.”  

3.If a claimant fails to return a completed relevant claim form as so required, the claim must be treated as withdrawn, but may be re-opened under certain conditions being complied with to the satisfaction of an immigration officer, as stipulated by Section 37ZG of the Ordinance:

“(1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2) An immigration officer must give the person who made the claim a written notice stating that –

(a) the torture claim is treated as withdrawn under subsection (1); and

(b) the person may apply to re-open the claim under subsection (3).

(3) A torture claim treated as 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 due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required under section 37Y(2).

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

(a) of the decision; and

(b) that the person is required to return a completed torture claim form in respect of the claim to an immigration officer at an address specified in the form within 14 days after the notice is given.

(5) 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.

(6) If a torture claim is re-opened under subsection (3), subject top subsection (7) and (8), processing of the claim is to continue in accordance with this Part as if the claim had not been withdrawn.

(7) Section 37Y(2) applies to the torture claim as if for paragraph (a) of the section there were substituted –

“(a) within the period of 14 days after the notice under section 37ZG(4) is given to the claimant; or”.

(8) If a completed torture claim form in respect of the torture claim is not returned in accordance with section 37Y(2) as read with subsection (7), the claim is to be treated as withdrawn under subsection (1) –

(a) on the expiry of the 14-day period; or

(b) if a further period is allowed under section 37Y(3), on the expiry of the further period.”

4.In the present case, the Applicant is a middle-aged national of Pakistan who entered Hong Kong illegally on 7 March 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his cousins over some land dispute within the family in his home village. On 7 February 2012 his torture claim was rejected by the Director.

5.On 1 June 2012 the Applicant lodged an appeal/petition to the Torture Claims Appeal Board (“Board”) against the Director’s decision for non-refoulement protection under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

6.By a Decision dated 11 June 2012, the Board dismissed his appeal/petition upon finding that it was filed more than 3 ½ months late, that there was no good reason or valid explanation for such serious delay, and that there were no merits in his intended petition given the fact that even on his own case that the risk of his claim involved just a private land dispute within his family without any official involvement that he had failed to establish any risk of being tortured as alleged upon his return to Pakistan.

7.Two years later on 19 June 2014, the Applicant raised a non-refoulement claim under the Unified Screening Mechanism (“USM”) on the then remaining applicable grounds other than torture risk including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”) and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.On 16 November 2016, the Applicant was served by an immigration officer with a Notice to Persons Making a Non-refoulement Claim and a SCF at Lai Chi Kok Reception Centre where he was then being detained, and was also provided with information to apply for publicly funded legal assistance from the Duty Lawyer Service (“DLS”).

9.On 21 November 2016 the DLS confirmed their instruction to act for the Applicant in his non-refoulement claim.

10.By a letter dated 9 December 2016 to DLS, the Applicant was required by the Director under Section 37Y(2) of the Ordinance to complete and return his SCF within 28 days on or before 4 January 2017 to the Immigration Department in support of his claim.

11.By another letter dated 14 December 2016 to DLS, the Applicant was reminded by the Director to return his completed SCF by 4 January 2017, and that failing which his non-refoulement claim would be treated as withdrawn under Section 37ZG(1) of the Ordinance.

12.By 4 January 2017 no SCF was returned by the Applicant, and on the same day the DLS also informed the Director of no further instruction to act for the Applicant in his claim.

13.By a Notice dated 6 January 2017 the Director in pursuance of Section 37ZG(2) of the Ordinance informed the Applicant that due to his failure to return his SCF as so required, his non-refoulement claim was treated as withdrawn.

14.More than 6 months later on 25 July 2017, the Applicant in writing to the Director requested to re-open his non-refoulement claim.

15.In pursuance of Section 37ZG(3) of the Ordinance, the Director required the Applicant to provide sufficient evidence in writing to satisfy an immigration officer that it was due to circumstances beyond his control that he had not been able to return his completed SCF as so required.

16.By a written submission dated 10 August 2017 the Applicant stated that he was then being detained at Lai Chi Kok Reception Centre due to a criminal offence, that his mind was fully occupied by the criminal proceedings he was then facing, and that due to his lack of education that he did not fully understand and appreciate the importance of completing and returning his SCF so required of him.

17.By a Notice of Decision dated 16 August 2017 the Director refused to allow the Applicant to re-open his non-refoulement claim upon finding that his situations as claimed were not circumstances beyond his control given the fact that he was then provided with legal assistance from DLS and that he would have been fully aware of the implications and consequences of his failure to return his SCF, and concluded that he had failed to establish to the satisfaction of an immigration officer that his failure to return his completed SCF was due to circumstances beyond his control.

18.On 30 August 2017 the Applicant lodged an appeal to the Board against the Director’s decision in refusing to allow him to re-open his claim, and for which he attended an oral hearing on 4 December 2018 before the Board during which he gave evidence and answered questions raised of his appeal by the Adjudicator for the Board. On 24 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

19.In its decision the Board identified the Applicant’s reasons for his failure to return the SCF to the Director, applied the test as set out in the Ordinance in his request, considered all the relevant factors including the overall justice of his case, and concluded that the Applicant had failed to provide sufficient evidence of any special circumstances beyond his control that caused him to be unable to return his SCF so required to justify the re-opening of his claim.

20.On 27 August 2019 the Applicant filed his Form 86 for leave to apply for judicial review of a decision of the Board which he dated 18 June 2019, and upon confirmation from the Board that its latest decision on an appeal/petition concerning the Applicant is the one referred to above dated 24 December 2018, for which the Applicant did not put forth any ground for seeking relief in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the decision, and that he cannot return to his home country as his life is in danger over there but without providing any proper ground for his intended challenge of the Board’s decision.

21.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.

22.As the last day of the three-month period for him to file his Form 86 fell on 24 March 2019, the Applicant was therefore more than 5 months 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.

23.In the Applicant’s case, a delay of more than 5 months must be considered as very substantial and inordinate, for which he explained at the hearing of his application that he had been detained at Castle Peak Bay Immigration Center (“CIC”) since October 2018 during which he was unable to seek legal assistance for his intended application.

24.The record shows that the Board’s decision was sent on the same day to his then reported address without being returned through undelivered post, and while it is accepted that he had been in various periods either being remanded pending criminal trial or serving a sentence in some correctional institution or in detention at CIC, it is however clear that during all such periods he was still able to make his various applications including his request to the Director to re-open his claim, his appeal to the Board, and his present application whilst in custody, and for which it is accepted that there would be the inevitable inconveniences and restrictions as to incoming and outgoing mails as well as accessing legal assistance, but they cannot in my judgment justify such serious delay as in the Applicant’s present application.

25.As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge either.

26.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.

27.In the present case of the Applicant, the issue before the Board was whether the Applicant had provided sufficient evidence that due to circumstances beyond his control that he had not been able to return his completed SCF as so required, of which the Adjudicator had had the benefit of hearing him in oral evidence and in his answers to questions raised of his reasons for failing to do so, of which the Board had correctly identified in [16] of its decision as the same as given to the Director:

“(i)  He was facing a criminal proceeding which caused him trouble; therefore, he was under tremendous pressure that he “could not think in a normal way.

(ii)  He was represented by a duty lawyer who assisted him in the Claim and the completion of SCF. Despite the legal assistance, he “could not manage to control the pressure” which adversely affected his well-being.

(iii)  He was unable to understand the issue due to his lack of education.”

28.The Board then applied the correct test on re-opening of claim under Section 37ZG (3) of the Ordinance in the Applicant’s case, and proceeded to find facts both in his favour and against him as stated in [20] – [30] of the decision, as well as a proper and correct analysis of the overall justice in the Applicant’s case when the Adjudicator did bear in mind of what was described as weighty factor of depriving the Applicant of the screening process of his claim under USM in the event of the dismissal of his appeal, and concluded, in my judgment rightly so, that notwithstanding such serious implication, that the Applicant had failed to provide sufficient evidence to establish that he was unable to complete and return his SCF due to his claimed pressure or health conditions when he was in fact in control of the situation and with legal representation from DLS, and that it was his own conscious decision to defer the completion and return of his SCF until at a much later date, of which the Board rightly found were not circumstances beyond his control to justify the re-opening of his claim.

29.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 the Applicant’s request to re-open his claim due to his failure to complete and return of his SCF as required.

30.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 or any merits in his intended application, I refuse to extend time and accordingly dismiss his leave application.

Dated the 16^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