Kamal Haider v. Torture Claims Appeal Board

HCAL 798/2021

[2023] HKCFI 2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 798 OF 2021

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 / 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 11 December 2018 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Pakistan who on 22 January 2014 raised a non-refoulement claim for protection to the Immigration Department by a written signification that he would be subjected to torture if refouled to his home country.  

2.To start off the processing of his claim, the Applicant on 24 November 2015 was served by the Immigration Department with a Notice to Persons Making a Non-refoulement Claim (“Notice”) and a Non-refoulement Claim Form (“NCF”) which he was required to complete and return to the Department within 28 days by 12 January 2016, and that he was also referred to the Duty Lawyer Service (“DLS”) for legal representation for his claim, for the purpose of commencing the process under the Unified Screening Mechanism (“USM”) of his claim under all the applicable grounds.

3.On 28 December 2015 the DLS informed the Immigration Department of no further instruction to act for the Applicant in his claim.

4.By a letter dated 30 December 2015 the Director reminded the Applicant that he was required to return his completed NCF on or before 12 January 2016 for the screening of his non-refoulement claim.

5.As no NCF had been returned by the Applicant, the Director by a letter dated 14 January 2016 informed him that his non-refoulement claim was treated as withdrawn under Section 37ZG (1) of the Immigration Ordinance, Cap 115, but that he may apply to re-open his claim under subsection (3) by providing sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond his control that he had not been able to return his completed NCF as required.

6.Some 3 months later on 14 April 2016 the Immigration Department received an undated letter from the Applicant requesting to re-open his non-refoulement claim as his life would be in danger if he were to return to his home country.

7.By a letter dated 20 April 2016 the Director informed the Applicant of the requirements for re-opening of his claim under Section 37ZG (3) of the Ordinance as noted above, and required him to do so on or before 4 May 2016.

8.On 16 May 2016 the Applicant was reminded by an immigration officer on the phone and also by a letter of the same date to comply with the requirements under Section 37ZG (3) by 30 May 2016 as extended.

9.As no further response had been received from the Applicant, or for that matter any completed NCF, the Director by a letter dated 10 June 2016 informed him that his request to re-open his non-refoulement claim was refused.

10.More than 2 years later on 5 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and in section 2 of his Notice of Appeal he stated his grounds as follows:

“I am not satisfied with the IMM decision, as I have problems in my home country, mental torture, threat, my life in danger over there. I want to file appeal against that.”

11.As his Notice of Appeal was clearly filed outside the 14-day period required by Section 37ZS (1) of the Ordinance, the Applicant in section 5 of his Notice of Appeal also made an application for the late filing with the following statement of his reasons:               

“I was hospitalized and did surgery in Tuen Mun Hospital. In that I changed my house. Also, I keep on enquiring from CIC when I used to come for sign, but no one informed me that I have to file appeal, I am uneducated cannot read n write. Please accept my late filing.”

12.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 Notice of Appeal, and by a Decision dated 11 December 2018, the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

13.In its decision the Board in applying the law as it then was as set out in Section 37ZT (2) of the Ordinance found that the Applicant had been late by more than 2 years and 3 months with his Notice of Appeal, that such delay was very serious and significant, that even if the Applicant had indeed been hospitalized during the relevant period, of which he had failed to provide any further details or documentary evidence such as medical report, that it was not acceptable that he could have been hospitalized for so long, that he was at one time legally represented by DLS that there was no explanation as to why he failed to return his NCF within the required period, and that there were no other relevant matters of fact within the Board’s knowledge or by reason of any special circumstances that would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal.         

14.On 31 May 2021 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 or in his supporting affirmation of the same date in which he just stated that he does not agree with the decision as he cannot go back to his home country where his life is still in danger but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

15.By then the Applicant was however again also out of time with his leave 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 date 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.

16.As the last day of the 3 month-period for him to file his Form 86 fell on 11 March 2019, the Applicant was therefore more than 2 years and 2 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.

17.In the Applicant’s case, a delay of more than 2 years must be considered as extremely substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.    

18.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended application. As such 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 or any merits in his intended application.

19.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.

20.In the Applicant’s case, the Board refused to allow the late filing of his Notice of Appeal for the thorough and detailed analysis and reasoning set out in paragraphs 14 – 39 of its decision upon taking the widest possible approach of all relevant matters within its knowledge and as set out in his Notice of Appeal as well as all the relevant correspondence between the Applicant and the Director and his decision, and in the absence of any error of law 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 to challenge the findings of the Board.

21.It is clear that the Applicant in having been explained by an immigration officer with the assistance of an interpreter of the importance to return his completed NCF within the required period so as to properly and formally commence the screening process of his claim under USM, of which it was also clearly his duty to do so under Section 37ZA of the Ordinance as set out in the Notice handed to him by the immigration officer, and no doubt also explained to him by his lawyer from DLS. As such I fail to see any justification at all that after all these years since 2016 that he has still failed to submit what is no doubt to him the most important document for his non-refoulement claim.         

22.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 determination of the Applicant’s application to re-open his claim.

23.Furthermore, I should note that the Applicant on 5 June 2023 wrote to both the Court and the Director requesting to withdraw his application as he wants to return to his home country as soon as possible as it is now safe for him to do so, but then just one week later on 12 June 2023 he informed the Director that he is no longer willing to return to Pakistan as it is not safe for him to do so.

24.In the premises, as I am for the given reasons 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, I refuse to extend time and accordingly dismiss his leave application.

Dated the 4^th day of August 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