Molla Rasidul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 981/2019

[2023] HKCFI 1969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 981 of 2019

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 leave to apply 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 23 February 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 10 April 2019 is late.[1] The deadline for the application is 23 May 2017. The delay is serious. I shall deal with this issue below.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant and the Director’s refusal to reopen his non-refoulement claim

4.The applicant is a national of India. He had previously lodged a torture claim on 11 September 2009 on the basis of an outstanding loan he took out from his three friends, who threatened to kill him since he defaulted the payments. On 25 August 2015, after the applicant’s failure to return his non-refoulement claim form (“NCF”), his torture claim was treated as withdrawn on 19 August 2015.

5.On 18 September 2015, the applicant requested a re-opening of his non-refoulement claim. His requested was acceded to by the Immigration Department. However, the applicant again failed to return the NCF. On 2 April 2016, his non-refoulement claim was again treated as withdrawn.

6.By way of a written representation dated 29 April 2016 and subsequent letters respectively dated 8 May 2016, 9 May 2016, 24 May 2016 and 26 May 2016, the applicant filed a second request for re-opening his non-refoulement claim. His grounds for re-opening were that (i) he had a criminal case in Kowloon City Court on 8 April 2016 and was later sentenced to 21 days’ imprisonment; (ii) he was informed on 11 April 2016 that his non-refoulement claim was deemed to be withdrawn when he was still in prison; and (iii) he had changed his address and thus he did not receive the correspondence from the Immigration Department [5]. Since his life was still in danger, he wished to reopen the assessment of his non-refoulement claim.

7.By way of the Notice of Decision dated 2 June 2016, the Director refused to re-open his non-refoulement claim (the “Director’s Decision”). In short, the Director simply rejected the applicant’s aforesaid reasons for failure to return the NCF and found that there existed no circumstances beyond the applicant’s control which rendered his failure to return the form on time [8]-[11].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. Pursuant to section 12 of Schedule 1A of the Immigration Ordinance, Cap.115, the Board proceeded to consider his appeal on paper without an oral hearing. Having considered all the relevant issues in his appeal, the Board declined to allow the applicant to reopen his non-refoulement claim.

9.The Board considered that the applicant had the benefit of legal assistance from the Duty Lawyer Service and it was his own decision not to give them instructions. He had ample time and enjoyed his liberty prior to his alleged court date on 8 April 2016 and the deadline for returning his NCF was on 1 April 2016, which was already extended once upon the request of his duty lawyer [17].

10.In these premises, the Board agreed with the Director’s Decision that there were no sufficient reasons to show that the applicant’s failure was due to circumstances beyond his control. As a result, the Board dismissed his appeal.

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

11.The applicant has filed Form 86 dated 10 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said he is not satisfied with the Board’s Decision and he cannot go back to India as his life will be in danger in his country.

DISCUSSION

13.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 23 May 2017. The delay is almost 2 years. He has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

14.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).

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

16.The question before this Court is whether the Board is correct to hold that there were no sufficient reasons to show that the applicant’s failure was due to circumstances beyond his control. This is a matter of fact finding, which the Board was entitled to come to its decision after considering the evidence and all the relevant circumstances before it. This Court should not interfere with its decisions unless there are reasons to show that the Board had contravened the administrative law requirements. The burden is on the applicant to show that the Board had committee any error of law, or was in breach of procedural propriety or it was Wednesbury unreasonable for it to have to come to its decisions. The reasons the applicant has raised in paragraph 12, supra are not valid to challenge the Board’s Decision.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.Therefore, 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 8^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