Lakhvir Singh v. Torture Claims Appeal Board

HCAL 610/2019

[2022] HKCFI 3205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 610 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

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 national of India who raised a torture claim in February 2013 while in Hong Kong on the basis that his life would be in danger if returned to India.

5.After his torture claim was rejected by the Director on 7 January 2014, the Applicant then sought non-refoulement protection by a letter dated 21 January 2014 from his legal representation.

6.Upon the subsequent commencement of USM, and to start the process of his claim, the Applicant was served by the Immigration Department on 27 June 2017 with a copy of Notice to Persons Making a Non-refoulement Claim together with a SCF with instructions to complete and return the Form within 28 days to the Immigration Department as required by Section 37Y(2) of the Immigration Ordinance. His case was on the same day also referred to the Duty Lawyer Service (“DLS”) for legal representation which he accepted.

7.By letters dated 18 July 2017 and 8 August 2017, the Director reminded DLS that the Applicant was required to return his completed SCF by 15 August 2017 or else his non-refoulement claim would be treated as withdrawn under Section 37ZG (1) of the Ordinance.

8.On 11 August 2017 DLS informed the Director that they had no further instruction to act for the Applicant in his claim.

9.As no completed SCF had been received from the Applicant, the Director by a letter dated 17 August 2017 to his then reported address at Tuen Mun informed the Applicant that his non-refoulement claim had been treated as withdrawn as stipulated under Section 37ZG (1) of the Ordinance.

10.About 3 weeks later on 5 September 2017 the Applicant in writing requested the Director to allow him to re-open his claim as his life would still be in danger if refouled to his home country.

11.By letters dated 18 September 2017 and 19 September 2017 to his same address at Tuen Mun, the Director required the Applicant to provide further information and evidence in writing within 7 days to satisfy an immigration officer that he had exercised all due diligence to return his completed SCF as required but was unable to do so due to circumstances beyond his control.

12.No further response or information had been received from the Applicant, the Director therefore by a Notice of Decision dated 19 October 2017 refused to allow the Applicant to re-open his claim upon finding that that he had failed to demonstrate that his failure to return a completed SCF within the required period or at all was due to circumstances beyond his control.

13.About 4 months later on 16 February 2018 the Applicant while being imprisoned at Tong Fuk Correctional Institution in writing to the Director again requested to re-open his claim.

14.By a letter dated 26 February 2018, the Director reminded the Applicant that his request had already been refused by the decision of 19 October 2017 due to his failure to provide any information or evidence to satisfy an immigration that he was unable to return his SCF due to circumstances beyond his control. In the letter the Director enclosed a copy of that decision and a blank Notice of Appeal with an advice that he could appeal against that decision of the Director to the Torture Claims Appeal Board (“Board”).

15.Accordingly on 9 March 2018 the Applicant lodged his appeal to the Board against the Director’s decision of 19 October 2017 refusing to allow him to re-open his claim, but as his Notice of Appeal was filed outside the 14-day period required by Section 37ZS(1) of the Ordinance, the Applicant included an application for late filing in section 5 of his Notice of Appeal, in which he gave the following reasons for the delay:

“I have send three letters to Immigration Tower, Wanchai to re-open my case, but I did not receive any reply. Then my signature was transferred to Tuen Mun CIC. I went to CIC for 2 months. Then from CIC I got information, I was told to apply my claim once again. They told me to go to Wanchai or Kowloon Bay. I went to Kowloon Bay, but the officer told me staff is busy you have to come back. Afterwards, I was arrested by Yuen Long police and detained there for 5 days, the(n) I was sent to prison. That is the reason for applying for appeal from prison. That is the reason for my late appeal. Thanks.”

16.It is also of note that the Applicant in section 2 of his Notice of Appeal provided the following grounds of appeal against the Director’s decision:

“I am not agree with your decision. I shall be highly thankful to you if you will consider my case once again, so that I should agree. I still have troubles in INDIA. Reconsider my case once again. Whenever my trouble in INDIA will be finished, I will come to you by myself and let you know. Allow me time until then. As soon as my trouble finished, I would love to go back my home happily. It will take lots of time to finish my troubles in INDIA. I shall be highly thankful to you if you will reconsider my claim once again. I should be given some more time. I have already submitted all the evidences regarding my claim. Newspaper pics has also been given. I shall be really happy, kindly open my claim once again.”

17.In pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a decision dated 24 December 2018 it refused to allow the late filing of the Applicant’s Notice of Appeal.

18.In its decision the Board found that the Applicant should have filed his Notice of Appeal on or before 6 November 2017, that he was therefore more than 4 months late with his Notice of Appeal, that his explanations for his serious delay were vague, lack of details or documentary support and were unpersuasive, and that there were no merits in either his non-refoulement claim or in his intended appeal to challenge the Director’s decision not to allow him to re-open his claim for failing to provide any information or evidence to satisfy an immigration officer that he was unable to submit his SCF due to circumstances beyond his control, and that there were no special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.

19.On 4 March 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, and in his supporting affirmation of the same date the Applicant merely stated that he is not satisfied with the decision as it ignored the fact that his life is in danger if refouled to his home country but without providing any details or particulars or elaboration as to how it did so, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his appeal to the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

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 Applicant’s case, the Board refused to allow the late filing of his Notice of Appeal for the detailed analysis and reasoning as set out in its findings and assessment in paragraphs 13 – 31 of its decision including the merits of his appeal as part of the relevant matters of fact within the knowledge of the Board under Section 37ZT(20(b) of the Ordinance and as held to be necessary by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430, and in the absence of any error of law or irrationality or procedural unfairness in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge such findings of the Board.

22.The crux of the matter is that the Applicant failed to submit his SCF as so required by Section 37Y of the Ordinance as noted above so as to substantiate his non-refoulement claim, of which he clearly failed his duty under Section 37ZA(1) when he was then still legally represented by DLS, and as correctly found by the Board that he clearly also failed to provide any evidence to satisfy an immigration officer that he had not been able to do so due to circumstances beyond his control, and that any argument that he might have been detained or imprisoned at that time and hence never received any letters from the Director is in my judgment clearly untenable given the fact that there is no evidence that he was ever detained or imprisoned during the relevant 28-days period up to 15 August 2017 to return his SCF, when even on his own case at the highest that it was much later until sometimes in January or February 2018 when he was being detained and/or subsequently imprisoned.

23.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 of the Applicant’s request to re-open his claim or in the Board’s refusal to allow the late filing of his Notice of Appeal.

24.For all the reasons given, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 25^th day of October 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