Rashid Zafar Ghori v. Torture Claims Appeal Board

HCAL 313/2023

[2023] HKCFI 2193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 313 OF 2023

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;

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 8 July 2022 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Pakistan who entered Hong Kong illegally on 4 January 2007 and was arrested by police some 5 months later on 5 June 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan People’s Party (“PPP”). He was subsequently released on recognizance pending determination of his claim.

2.By a Notice of Decision dated 16 March 2011 the Director of Immigration (“Director”) rejected the Applicant’s torture claim, of which the Applicant did not bring any appeal to the Torture Claims Appeal Board (“Board”).

3.By letters dated 18 January 2013 and 6 March 2013, the Applicant indicated his intention to claim non-refoulement protection on the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

4.On 18 November 2016 the Applicant was served by an immigration officer with a Notice to Person Making a Non-refoulement Claim together with a blank Supplementary Claim Form (“NCF”) which he was required to complete and return to the Immigration Department on or before 16 December 2016 under Section 37Y (2) of the Immigration Ordinance, Cap 115 for the purpose of establishing his non-refoulement claim. On the same day he was also referred to the Duty Lawyer Service (“DLS”) for publicly funded legal representation for his claim.

5.On 29 November 2016 the DLS informed the Director that the Applicant had declined their service and that they therefore had no instruction to act for him in his claim.

6.By a letter dated 8 December 2016 from the Immigration Department to his then reported address, the Applicant was reminded to return his completed SCF by 16 December 2016.

7.As no SCF was returned by the Applicant within the required period, the Director on 19 December 2016 by a Notice of Deemed Withdrawal of Non-refoulement Claim on Failure to Return Completed Supplementary Claim Form informed the Applicant that his claim was accordingly treated as withdrawn on 17 December 2016 pursuant to Section 37ZG (1) of the Immigration Ordinance.

8.Just 9 days later on 28 December 2016 the Immigration Department received a set of documents from the Board including the Applicant’s completed SCF dated 11 December 2016 and with the post mark on the envelop of 14 December 2016 addressed to the Board.

9.Apparently the Applicant did complete his SCF within the required period but sent it to the wrong address, and although it eventually made its way to the Immigration Department some 2 weeks later, by then his non-refoulement claim had already been treated as withdrawn by the Director by his Notice dated 19 December 2016.     

10.Almost 5 years later on 7 October 2021, the Applicant in writing from his detention at the Castle Peak Bay Immigration Centre (“CIC”) to the Director requested to re-open his non-refoulement claim as he claimed to have family outside (of CIC).

11.By a letter dated 1 November 2021 sent to him at CIC, the Director in pursuance of Section 37ZG (3) of the Immigration Ordinance required the Applicant to provide sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond his control that he had not been able to return the completed SCF as required.

12.In his reply dated 19 November 2021, the Applicant just reiterated his request to re-open his claim.

13.By a Decision dated 26 November 2021 sent to him at CIC, the Director refused to allow the Applicant to re-open his claim for the following stated reasons:

“8. As ample time and opportunities have been given but we did not receive any information as requested from you so far, it is not satisfied that you had exercised all due diligence but failed to return the completed claim form as required because of circumstance beyond your control. After careful consideration of your case and the re-opening request, it is decided not to re-open your non-refoulement claim for the following reasons:

No detailed reasons explaining why you failed to return the completed claim form as required and no evidence showing that you had exercised all due diligence but failed to return the completed claim form as required because of circumstances beyond your control.

9.   In view of all the above, your re-opening request is rejected.”

14.On 6 December 2021 the Applicant from CIC lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but some 7 months later and before the determination of the appeal, the Board on 8 July 2022 received on a notice dated 4 July 2022 from the Applicant from his detention at Tai Tam Gap Correctional Institution to withdraw his appeal, and in pursuance of Section 37ZTA (2) of the Ordinance, the Board by a letter dated 8 July 2022 informed the Applicant that his appeal/petition was accordingly withdrawn, that no further action will be taken by the Board in respect of his appeal/petition, and that his claim is finally determined.  

15.More than 7 months later on 28 February 2023 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 his life will be at risk if returned to his home country and that he wants to stay in Hong Kong.

16.By then the Applicant was also 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 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.

17.As the last day of the 3 month-period for him to file his Form 86 fell on 8 October 2022, the Applicant was therefore more than 4 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 4 months must be considered as very substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and at the hearing of his application he just claimed that he needed more time to obtain his documents, and as the record shows that the Board’s decision was sent on the same day to his then detention at Tai Tam Gap Correctional Institution without being returned through undelivered post, I am not satisfied that the Applicant has provided any good or valid reason for his serious delay.    

19.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forth any grounds for his intended challenge, and given the fact that the Board’s decision simply acceded to his request to withdraw his appeal, and as Section 37ZTA (2) of the Ordinance stipulates that an appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Board, and that no further notice of appeal may be filed in relation to the decision, I am unable to see any reasonably arguable basis for the Applicant to challenge the Board’s decision by way of judicial review, as it was so put to him at the hearing, and to which he was unable to answer or argue.

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, it is unfortunate that he in 2016 sent his competed SCF to the Board instead of to the Immigration Department as directed by his immigration officer and to an address specified in the Form as stipulated by Section 37Y (1)(b) of the Ordinance, which must mean to the Immigration Department and not the Board, and hence the Applicant had only himself to blame for the mistake, and that by the time his NCF was received by the Immigration Department, his claim had already been validly treated as withdrawn in accordance with Section 37ZG (1) of the Ordinance.

22.Whilst in his subsequent request to the Director to re-open his claim in pursuance of Section 37ZG (3) of the Ordinance, the Applicant may argue that high standards of fairness would require the immigration officer to exercise his discretion to consider allowing him to re-open his claim in light of his mistake of sending his completed SCF within the required period but to the wrong address while being a litigant-in-person without legal representation, and that upon the immigration officer’s refusal, to run the same argument in his appeal before the Board, but for whatever reasons that he instead decided to withdraw his appeal, I am unable to find any reasonably arguable basis for him now to challenge the Board’s decision.

23.In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in its decision, nor any failure on its part to apply high standards of fairness in acceding to the Applicant’s request to withdraw his appeal in the circumstances.

24.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of the Board’s decision, 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 24^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