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

HCAL 1143/2019

[2023] HKCFI 2806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1143 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 1 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) dismissing her appeal against the Director’s decision not to re-open her non-refoulement claim. The application filed on 30 April 2019 is late[1]. This issue will be dealt with 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”), the Court deals with her application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, 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’s application to reopen her non-refoulement claim.

4.The applicant had previously lodged a non-refoulement claim. By way of letters dated 15 December 2016 and 5 January 2017, the Immigration Department required her to return the completed non-refoulement claim form (“NCF”) on or before 12 January 2017. On 12 January 2017, the duty lawyer service informed the Immigration Department that they had not received any instructions from the applicant and thus could not act for her further. Meanwhile, the applicant did not return the completed NCF nor did she apply for an extension of time to return the NCF. As a result, on 13 January 2017, the Immigration Department treated her non-refoulement claim as withdrawn.

5.On 4 June 2018, the applicant wrote to the Immigration Department and requested to reopen her non-refoulement claim. She simply stated that she did not want to go back to her home country as she had borrowed money from the bank.

6.On 12 June 2018, the Immigration Department conducted an interview with the applicant, during which she was assisted by an Indonesian interpreter. On the same date, the applicant explained in her letter that she could not return the NCF because she did not have money and was unable to borrow the sum for her to find duty lawyer service and submit the NCF.

7.Having considered all the circumstances, the Director refused to reopen the applicant’s non-refoulement claim as she failed to satisfy that she was unable to return the completed NCF due to circumstances beyond her control.

The Board’s Decision

8.The Board found that the applicant had the legal assistance from the duty lawyer service but failed to give instructions to them. After her non-refoulement claim was withdrawn on 13 January 2017, she did not contact the Immigration Department until she was detained in June 2018 [15].

9.Meanwhile, the Board considered that the reasons given by the applicant about lack of fund was not reasonable as she had the legal assistance from the duty lawyer service and she could have approached the Immigration Department for assistance in person. From 15 December 2017 to 12 January 2018, the applicant had ample opportunities to do so but she chose not to. As a result, the Board was also of the view that there were no circumstances beyond the applicant’s control that prevented her from lodging the completed NCF within the time limit [16].

10.For the above reasons, the Board dismissed the applicant’s appeal.

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

11.The applicant has filed Form 86 dated 30 April 2019 for leave to apply for leave for judicial review.

12.In her affirmation in support of her application, the applicant said she does not want to return to her country, but she did not raise any specific ground.

DISCUSSION

13.As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The deadline for her to file Form 86 is 1 February 2019. The delay is almost 3 months. The delay is serious and her application can be dismissed as she has not given any explanation for the delay. I shall, nevertheless, first consider the merits of the applicant’s case.

14.The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his decision on the applicant’s subsequent claim application. The Court will not usurp the fact finding power vested in the Director. 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.Under section 37ZG (3) of the Ordinance, the applicant’s application for re-opening of her refoulement claim, which was deemed to have been withdrawn, has to complied with the following conditions:

“(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 the person— (Amended 7 of 2021 s. 14)

(a) had exercised all due diligence to return a completed torture claim form as required under section 37Y (2); but

(b) failed to return a completed form as required under the section because of circumstances beyond the person’s control. (Amended 7 of 2021 s. 14)”

17.The Board, for the reasons stated in paragraphs 8 & 9, supra, found that the applicant has no good reason in support of her application for re-opening of her claim.

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 she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.I refuse to extend time for the applicant to apply for leave for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 14^th day of November 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