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

HCAL 1889/2018

[2023] HKCFI 146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1889 of 2018

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 13 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) refusing to allow his late filing of notice of appeal/petition against the Director’s Decision as described below. His application filed on 10 September 2018 is late.^[1] I shall deal with this issue 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”), his application is therefore dealt with on paper.

The Director’s Decision

3.The applicant lodged a non-refoulement claim on 8 December 2013.  By way of a letter dated 25 August 2016, the Immigration Department requested the applicant to submit the completed supplementary claim form (“SCF”) on or before 31 August 2016, failing which the applicant’s non-refoulement claim would be treated as withdrawn.

4.On 24 August 2016, the duty lawyer service informed the Immigration Department that they did not receive any instructions from the applicant and thus were unable to act for him.  Since the applicant failed to submit the SCF within the time limit, on 5 September 2016, the Immigration Department notified him of the withdrawal of his non-refoulement claim.

5.On 9 November 2016, the applicant wrote to the Immigration Department and requested to reopen his non-refoulement claim.  Having considered the relevant circumstances, by way of a letter dated 16 December 2016, the Director refused to allow the re-open of the applicant’s non-refoulement claim (the “Director’s Decision”).

The Board’s Decision

6.On 23 February 2017, the applicant filed a notice of appeal/petition to the Board, seeking to challenge the Director’s Decision.  However, he was more than 3 months out of time.  As a result, the Board proceeded to determine whether it would allow the applicant’s late filing of notice of appeal/petition.

7.The Board considered the applicant’s explanation that he was in the prison and was without language assistance [9].  However, the Board refused to accept this explanation as the applicant did not state that he received the Director’s Decision late nor did he state that he was unable to access to interpretation service [10].  Since the explanation was unsatisfactory and that it did not find any special circumstances to allow the late filing, the Board rejected the applicant’s application to allow the late filing of appeal/petition.

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

8.The applicant has filed Form 86 dated 10 September 2018 for leave to apply for judicial review of the Board’s Decision.

9.In his affirmation in support of his application and the grounds attached to Form 86, the applicant did not set out any specific ground.

DISCUSSION

10.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 13 June 2018. The delay is about 3 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

11.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).

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

13.The question for this Court is whether the Board’s decision not to extent time for the applicant to file his notice of appeal is correct under the administrative law.

14.The Director refused his application because he had failed to submit the torture claim form as required under section 37Y(2). The relevant provisions of section 37Y are:

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

(b)  return the torture claim form so completed to an immigration officer at an address specified in the form, together with all 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).

15.The applicant was also late in his filing of the notice of appeal with the Board and the Board had refused to extend time for him to do so, pursuant to section 37ZT of the Ordinance. On the face of it, the Board had not taken into consideration the merits of the applicant’s case, contrary to Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019. However, before the Board, there was no report from the Director as the applicant had failed to submit the completed torture claim form, in which he should have set out all the facts he relied upon in support of his application. Therefore, it was impossible for the Board to consider the merits of the applicant’s case.

16.The Board cannot be faulted for not having considered the merits of the applicant’s case. The law has now changed to the effect that the Board is not obliged to consider the merits of the applicant’s case if the applicant fails to file his notice of appeal within the time limit.

17.There is no valid reason to challenge the Board’s Decision.

18.The Court does not find any error of law or procedural unfairness in the Board’s Decision.

19.The applicant fails to show that he has any realistic prospect of success in his 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 his application.

Dated the 26^th day of January 2023

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