Belaid Chadli v. Torture Claims Appeal Board

HCAL 2073/2018

[2022] HKCFI 3005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2073 of 2018

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 4 August 2017 granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.The Applicant is a national of Tunisia in his late 50s or early 60s who on 22 May 2012 first raised a torture claim with the Immigration Department, but when he failed to return his Torture Claim Form (“TCF”) within the prescribed time limit, his claim was on 20 June 2013 treated as withdrawn.

2.One year later on 25 June 2014, the Applicant raised a claim for non-refoulement protection on all then applicable grounds other than torture risk under Part VIIC of the Immigration Ordinance, Cap 115 which as noted had earlier been withdrawn.

3.On 30 June 2016 the Applicant accepted legal representation from the Duty Lawyer Service (“DLS”) and was served by the Immigration Department with a copy of Supplementary Claim Form (“SCF”) with a written request to complete and return it within 28 days by 28 July 2016 under Section 37Y(2) of the Ordinance, and with a warning that failing to do so would result in his non-refoulement claim being treated as withdrawn.

4.On 21 July 2016 a written reminder was served on the Applicant’s lawyer from DLS to return his completed SCF to the Immigration Department by 28 July 2016, and that failing which his non-refoulement claim would be treated as withdrawn.

5.On 28 July 2016 DLS informed the Immigration Department of no further instruction to act for the Applicant, and as no SCF was submitted by the Applicant, the Director of Immigration (“Director”) by a written notice dated 1 August 2016 informed him that his claim had been treated as withdrawn under Section 37ZG(1) of the Immigration Ordinance.

6.Six weeks later on 19 September 2016, the Applicant wrote from Tong Fuk Correctional Institution to the Director to enquire about the progress of his non-refoulement claim, and that he did not go “for the interview” because he was sick and he got doctor’s documents to prove it but which he did not provide in his letter.

7.By a letter dated 21 September 2016 the Director replied to the Applicant at Tong Fuk Correctional Institution to inform him that his non-refoulement claim had already been treated as withdrawn due to his failure to return his completed SCF, and also enclosed a copy of the decision of 1 August 2016 for his reference.

8.About a week later on 30 September 2016, the Applicant from the Castle Peak Bay Immigration Centre (“CIC”) made a written representation to the Director claiming that he cannot return to Tunisia where he would be killed for political reason, and that he wanted to re-open his non-refoulement claim.

9.By letters dated 5 October 2016 and 9 November 2016 to the Applicant in CIC, the Director required the Applicant to provide sufficient evidence in writing to satisfy an immigration officer that he had not been able to return his completed SCF as required due to circumstances beyond his control in support of his request to re-open his claim under Section 37ZG(3) of the Ordinance.

10.On 22 November 2016 the Applicant from CIC submitted information under a “Detainee Submission Sheet” to the Director with information as to his claimed problems in Tunisia but which the Director did not find to be acceptable explanation for his failure to return his completed SCF to justify his request to re-open his claim.

11.By a letter dated 7 December 2016 to the Applicant in CIC, the Director repeated the request for him to provide sufficient evidence to satisfy an immigration officer that due to circumstances beyond his control that he had not been able to return his completed SCF.

12.As no further response had been received from the Applicant, the Director by a Notice of Decision dated 11 January 2017 refused his request to re-open his claim upon concluding that he had failed to provide any evidence in writing to satisfy an immigration officer that due to circumstances beyond his control that he was unable to unable to return his completed SCF within the stipulated period or at all under Section 37Y(2) of the Ordinance. It is of note that the immigration officer involved did not appear to have conducted any interview with the Applicant regarding his request to re-open his claim, or in fact for that matter why he failed to return his completed SCF.

13.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not hold any oral hearing and dealt with the appeal in the absence of the Applicant and on paper, and on 4 August 2017 it dismissed his appeal and confirmed the Director’s decision.

14.In its decision the Board agreed with the Director that the Applicant had failed to provide sufficient evidence in writing to satisfy an immigration officer that his failure to return his completed SCF within the time limit was due to circumstances beyond his control, and that the Director was justified to refuse his application to re-open his non-refoulement claim.

15.On 28 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he stated that he is not satisfied with the decision to reject his claim for lack of documents due to his detention at CIC that he was unable to submit any document in support of his claim. He did not request any oral hearing for his application.

16.By then the Applicant was however seriously 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 eth application shall be made.

17.As the last day of the three-month period for him to file his Form 86 fell on 4 November 2017, the Applicant was therefore more than 10 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.

18.In the Applicant’s case, a delay of more than 10 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and while I note from his Form that he was then still being detained at CIC where there would be the inevitable delay in receiving mails and difficulties in seeking legal assistance, but in the absence of any specific explanation from the Applicant, I am unable to be satisfied how such difficulties or inconveniences could explain or attribute to his such serious delay in excess of 10 months.

19.As for the merits of his intended application, as noted above that the Applicant complained of not being able to obtain supporting documents while being detained at CIC but again also failed to provide any further details or particulars or elaboration for his complaint.

20.Nevertheless, given the serious implications of the Board’s decision which in effect denied the Applicant of the screening process of his non-refoulement claim under the Unified Screening Mechanism (“USM”) for any of the applicable risks, the Court will adopt an enhanced standard in scrutinizing the reasons of the Board’s decision for any error of law of irrationality or procedural unfairness in its refusal to allow the Applicant to re-open his claim, but before doing so, it would be relevant to first note that the Applicant in Section 2(B) of his Notice of Appeal stated the following grounds for his appeal against the Director’s decision:

“I am lodging appeal here against the decision of immigration on 11^th of January. They refused my case without interview and (SCF). Here I am giving reasons. (i) In July 2016 they give me SCF to fill up but in end of July I fell down on Star Ferry and was injured. That time police asked for emergency and took me to Queen Elizabeth Hospital. I admitted there for some days. I have that medical reports and evidences but now I am in CIC and I have no friend who can help me. I also was caught by police and send me to prison after I came from hospital and till now in detention. That’s why I can not give them SCF. I request them two times to re-open my case. Instead they refuse my case without interview. I also write to hospital for my admission report in hospital but they demand money 70 HK$. I am in CIC and I have no money. You can check record from hospital. Please look into my case how can they refuse my case without any process?

I am sending you one document and one extra sheet for reasons. Please send me back a photocopy of that document. I shall be thankful to you.”

21.In his “extra sheet for reasons”, the Applicant also stated as follows:

“In 2013 which they objected that I not give interview. That time they came to me for interview without interpreter and I also have ear problem. I can not hear anything. They did brought ear machine. How could I give interview to them when I could not hear and have no interpreter of my language? After that they took me to hospital. I went almost seven times but they did not do proper treatment and not give me ear machine. That time in my country my enemies killed my cousin. I was in big tensions. I told already that time due to tension I started drinking. I lived with black people and drank too much daily. That’s why I could not process my case. These are some brief reasons I have provide but I have no friend visit. I will give you when I am released from here. Please kindly look into my case with due attention and kindness.”

22.The other document attached to his Notice of Appeal and referred to above is a letter dated 6 January 2017 from Queen Elizabeth Hospital under the title of “Reply to Data Access Request of Patient: BELAID, CHADLI”, in which it referred to the Applicant’s data access request received on 21 December 2016, but that the request would not be complied with as the processing fee of HK$70 had not accompanied the request.

23.As noted above, the Board did not conduct any oral hearing for the Applicant’s appeal, and proceeded to deal with it on paper, and on 4 August 2017 it dismissed his appeal for the following reasons stated in its decision:

“18. Having carefully considered all the relevant issues in this petition, I decline to allow the Petitioner to re-open his non-refoulement claim application. The Petitioner failed to return a completed SCF resulting in his claim being deemed to be withdrawn under Section 37ZG(1) of the Ordinance on 29 July 2016. He the applied to re-open his claim on 30 September 2016. On 5 October 2016, 9 November 2016 and 7 December 2016, the Director requested the Petitioner to provide sufficient evidence in writing to satisfy an immigration officer that the reason why he had not been able to return the completed SCF as required was due to circumstances beyond his control. The only document submitted by the Petitioner in support of his request to re-open his non-refoulement claim was the “Detainee Submission Sheet” made while he was in the CIC which showed the problems he claimed in Tunisia, and that was not information which would show that he had been unable to submit his completed SCF as required due to circumstances beyond his control. The Petitioner had therefore failed to provide sufficient evidence in writing to satisfy an immigration officer that the reason why he had not been able to return the completed SCF within the time limit was due to circumstances beyond his control. It was under these circumstances that the Director refused the Petitioner’s application to re-open his non-refoulement claim.

19. Section 37ZG(3) provides that:

“(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).”

The Petitioner had not provided sufficient evidence in writing to support his application to re-open his non-refoulement claim under Section 37ZG(3) of the ordinance and paragraph 55 of the Notice.  Under these circumstances, the Director was justified to refuse the Petitioner’s application to re-open his non-refoulement claim.

20. Paragraph 24.1 of “The Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme” also provides that:

“24.1 A non-refoulement claim will be treated as withdrawn if the person who made the claim fails to return the completed non-refoulement claim form within the prescribed 28-day period or any further period as may be allowed by an immigration officer. A non-refoulement claim treated as withdrawn on such circumstances may be reopended if the person who made the claim provides sufficient evidence in writing to satisfy the immigration officer that he had not been able to return the completed non-refoulement claim form as required due to circumstances beyond his control.

21.The Petitioner’s petition is accordingly dismissed and the Director’s Decision dated 11 January 2017 is confirmed.”

24.Despite having stated that it had “carefully considered all the relevant issues” in the Applicant’s appeal/petition, it does not appear from the above passages or from the entire decision that the Board did do so as to what the Applicant had stated in Section 2 of his Notice of Appeal or in the 2 attached documents as noted above, in which the Applicant had clearly given his reasons for his failure to return his competed SCF to the Director which were not so stated in his earlier explanations to the Director, and if the Board did consider them as it so stated, it does not appear to have given any or sufficient reasons as to why such explanations were not acceptable to the Board.

25.In fact, by just stating the relevant statutory requirements and by simply agreeing with the findings and reasons of the Director for refusing to allow the Applicant to re-open his claim in its decision as noted above without making its own findings in particularly as to those statements made by the Applicant in his Notice of Appeal, the Board appears to me just discharging an appellate role instead of making its own determination of the Applicant’s appeal or petition by way of a rehearing of the matter determined by the immigration officer, as held by McWalters J (as he then was) in AM v Director of Immigration & Anor [2014] 1 HKC to be the proper role of the Adjudicator at p 429F:

“28. All of these matters suggest to me that, in legal terms, a determination of a petition under art 48(13) involves a rehearing of the matter determined by the Assessor and not an appeal from the Assessor’s decision.

29. On this issue I derive support from the Court of Appeal’s decision in Kaur v Director of Immigration [2001] 1 HKC 666 where the Court of Appeal characterized the petition process under art 48(13) as involving considering afresh the original decision.

30. A rehearing can take different forms. It can take place just on the papers or it can involve the calling of witnesses. Given the fact that it is clearly anticipated that the Adjudicator is expected to resolve issues of credibility and for this purpose should conduct an oral hearing, there will be occasions when the adjudication process will require the calling of witnesses and the taking of evidence. But, this will not always be the case. The process can best be described as a rehearing of the claim at the end of which the Adjudicator makes his own determination in respect of it. The process starts with the Adjudicator being provided with all the papers that were before the Assessor at which time the Adjudicator makes a preliminary decision on whether evidence needs to be called. If he decides it does not he must then go on to consider whether notwithstanding that the adjudication of the petition will be conducted only on the papers he nevertheless requires an oral hearing to determine the claim. This may be because he needs the assistance of the parties on some issue or, because of particular circumstances, procedural fairness dictates that an oral hearing take place.”

26.In ST v Betty Kwan [2014] 4 HKLRD 277, in which the Court of Appeal examined the principles on whether to hold an oral hearing for the determination of an appeal/petition by the Board, Cheung CJHC (as he then was) reasserted the role of an adjudicator seized of a petition at the second tier of the screening process of a non-refoulement claim, and emphasized the involvement of high standards of fairness in such process:

“53. The fact that at the first tier, there was already an interview by the Director’s officer with the torture claimant (in the presence of his legal representative) is of course a relevant consideration to take into account. What has or what has not been covered at the interview, or in the Director’s subsequent letter of rejection, must also be seriously considered. But none of them can, generally speaking, be conclusive on the question of whether there should be an oral hearing at the petition stage. After all, it is common ground that an adjudicator seized of a petition at the second tier of the screening process does not sit on appeal from the first tier decision. Rather, he is there to conduct a hearing (oral or on paper), make his own findings of fact, and comes to his own decision on the torture claim.

54. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved. It is worth repeating that the purpose of holding an oral hearing is not only to assist the adjudicator in his decision-making, but also to reflect the torture claimant’s “legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute”: Osborn, para 82. Whilst some might find “where he has something useful to contribute” begging the very question that has to be answered, what has just been quoted actually highlights, in my view, the fact that when it comes to procedural fairness, particularly when high standards of fairness are required, the process itself is as important as the outcome, quite apart from the fact that very often process actually determine outcome.”

27.As to what high standards of fairness require, the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 held that they should be applied as follows:

“51. In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows: (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. The question as to what weight the Secretary may properly place on UNHCR’s decision in relation to refugee status will be addressed later. (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.

…

53. It is for the Secretary to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by the persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the refugee Convention. And the guidance provided by UNHCR in the Handbook for the determination of refugee status provides a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned …”

28.Granted that if a claimant failed to return a competed Non-refoulement Claim Form (“NCF”), or as in the present case the SCF, to the Director as so required, there would not be any claim, or any details of such claim, before the immigration officer, or for that matter the Adjudicator, for assessment and determination as to whether the claimant should be entitled to non-refoulement protection, and that for proper administrative purposes, there must be restrictions and time limits imposed on the claimant to comply with the statutory requirements and conditions in submitting the necessary supporting documents, including the relevant NCF or SCF, so as to commence the 1^st tier of the screening processing of his claim under the USM without undue delay, but in my view high standards of fairness should equally apply in the consideration and determination of the compliance of such procedural matters given the serious implications of the refusal to allow the re-opening of a claim due to the failure to comply with such procedural requirements.

29.In applying high standards of fairness in the consideration of such applications, and while it cannot be disputed that many of such applicants, and which this Court has dealt with its share, were indeed not genuinely fleeing their home country for fear of any of the applicable risks, or were not entitled to non-refoulement protection, and hence may try any means to delay their deportation from Hong Kong, an Adjudicator should however never make such assumptions in his approach, and should instead bear in mind those observations of the Court of Final Appeal in Prabakar supra, and as repeated in the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (“Petition Guide”), 4^thed 12 September 2016, and ask himself these questions:

(i)  if the person concerned is indeed not genuinely fleeing his home country to seek protection in Hong Kong, and just wants to delay his inevitable deportation, why then would he not submit his NCF or SCF so as to commence what would no doubt be a lengthy process of his claim during which he may not as a matter of policy be removed from Hong Kong while his claim is being processed or undergoing administrative or judicial review?

(ii)  If on the other hand he is a genuine claimant seeking protection in Hong Kong, again why then would he not submit his all-important NCF or SCF to support his claim? Is it because he was having real problem or difficulty in the circumstances of his person or situation which may be beyond his control for him to do so within the time so required or at all?

30.These questions would in my view provide a clear basis for the Adjudicator to approach the consideration and assessment of any explanations from the person concerned as well as to determine the credibility of such explanations before concluding whether it was indeed due to such circumstances beyond the person’s control that he had not been able to return a completed NCF or SCF as required under Section 37Y(2) of the Ordinance.

31.In the present case, based on the information provided in the Director’s decision and the Applicant’s Notice of Appeal, which were both available before the Board, it appears that the Applicant had put forward the following explanations and information for his failure to return a completed SCF to the Director:

(1)  That his lawyer from DLS stated on 28 July 2016 of no further instruction to act for him;

(2)  That in end of July 2016 the Applicant had an accident on a Star Ferry and was taken to Queen Elizabeth Hospital where he was hospitalized for some days and that thereafter he was sent to prison;    

(3)  That less than 2 months later on 19 September 2016 he enquired with the Director about the progress of his claim, and claimed to be in “Tong Fuk Prison” and that he did not attend “the interview” because he was sick;

(4)  That the Director’s reply on 21 September 2016 was sent to the Applicant c/o Tong Fuk Correctional Institute;

(5)  That the Director’s subsequent correspondences with the Applicant were all sent to him c/o CIC;

(6)  That the Applicant on 21 December 2016 from CIC wrote to Queen Elizabeth Hospital for a copy of his medical report;

(7)  That Queen Elizabeth Hospital on 6 January 2017 replied to the Applicant at CIC required him to pay a processing fee of HK$70 for the report;

(8)  That the Applicant claimed not to have the money to pay as he was being detained at CIC and with no one to help him to make the payment;

(9)  That when he filed his Notice of Appeal on 16 January 2017 he was still being detained at CIC.

32.As noted above, it does not appear that the Board had taken account or consideration of any of these explanation and information which were clearly relevant to the Applicant’s failure to return his SCF to the Director within the required time or at all before proceeding to dismiss his appeal, and that if it did so, it failed to give any or sufficient reasons as to why they were not considered or accepted as sufficient evidence that due to such circumstances beyond the Applicant’s control that he had not been able to return his SCF to the Director as required to justify the re-opening of his claim under Section 37ZG(3) of the Ordinance.

33.In the premises, and for the reasons given, I am of the view that there are merits in the Applicant’s intended application for judicial review of the Board’s decision on the basis of the grounds stated above as reasonably arguable for his intended challenge, and meeting the threshold for leave to be so granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

34.Accordingly, I extend time to the Applicant’s late application, and grant leave to him to apply for judicial review of the Board’s decision, for which he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 30^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