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

HCAL 1808/2019

[2024] HKCFI 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1808 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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.By Notice of Decision dated 7 May 2018 (“the Director’s Decision”), the Director of Immigration refused to re-open the applicant’s non-refoulement claim.  The applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  The Board, by Decision dated 3 October 2018 (“the Board’s Decision”), dismissed his appeal.

2.The applicant applies for leave to apply for judicial review of the Board’s Decision.

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

The applicant

4.The applicant is a national of Pakistan.  He was arrested by police on 6 May 2009 and he raised a torture claim by way of written signification dated 9 May 2009. However, he failed to attend an interview with the immigration officer.  The matter was kept in abeyance for 4 years.

5.In 2017, he applied to resume his application.  The Director acceded to his request and advised him to complete the Non-refoulement Claim Form (“NCF”) and returned it within 28 days from 29 March 2017.  He failed to submit the NCF within time.  Under section 37ZG of the Ordinance, the applicant’s torture claim was treated as withdrawn.  The Director so notified the applicant.

6.The applicant then applied to the Director for re-opening his claim.  Having considered his explanations, the Director refused his request.  He appealed to the Board.

The Board’s consideration and Decision

7.In the Board’s Decision, the Board set out the proceedings before the Director, who had advised the applicant to return the NCF to the Removal Assessment Section (“RAS”) of the Department within 28 days from 29 March 2017.

8.On the same day, the applicant was provided with legal assistance under the Duty Lawyer Service (“DLS”).

9.The Director had issued 2 letters respectively dated 19 April 2017 and 10 May 2017 advising the applicant to return the completed NCF on or before 17 May 2017 and the consequences if he failed to do so.

10.On 17 May 2017, DLS informed the Director that they did not have instructions to act for the applicant.

11.The Director sent a written notification to the applicant, informing him that his non-refoulement claim had been treated as withdrawn on 18 May 2017.

12.By 2 letters respectively dated 6 and 7 April 2018, the applicant requested to re-open his claim, saying that his problem still existed.

13.By a letter dated 18 April 2018, the Director requested the applicant to provide information and evidence to support his application for re-opening of his claim.

14.By a letter dated 21 April 2018, the applicant explained as follows:

(1)  he could not return his NCF because he had to vacate his house and could not receive any letter from the Department; and

(2)  due to drug addiction and having no contact with his family, he was mentally very upset and hence he could not contact.

15.On 7 May 2018, the Director, by the Director’s Decision, informed the applicant that after careful consideration, he had decided not to re-open the applicant’s non-refoulement claim for the following reasons:

(1)  The applicant was fully briefed on 29 March 2017 on his obligation to return a completed NCF within a certain time limit.  Despite the written request and reminder and the provision of legal representation by the DLS, he still failed to return a completed NCF as required.

(2)  The reasons he had given did not constitute circumstances which are beyond his control which had prevented him from returning the completed NCF as required.

(3)  He had been in Hong Kong since May 2009.  On numerous occasions, he failed to turn up at scheduled briefing, time for reporting to recognizance office and was arrested for drugs and other offences.  There is no reason why he could not get in touch in with DLS or RAS if he had the intention to do so.

16.The Board then considered the statutory provisions of sections 37Y(2)^[1] and 37ZG^[2] of the Ordinance and also, paragraph 24 of the “The Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme” effectively mirrors section 37ZG of the Ordinance.

17.In the Board’s Decision, §§16-18, the Board declined to allow the applicant to re-open his non-refoulement claim.  It agreed with the Director’s Decision and the Director’s grounds for making his decisions.  Accordingly, it dismissed the appeal and confirmed the Director’s Decision.

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

18.The applicant has filed Form 86 dated 28 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.In his affirmation in support of his application, the applicant said he was being detained and did not have the documents, which could be provided after his release.  He had also attached a statement with the grounds, which I shall summarize as below.

(1)  The Board had paid no regard to Article 28 of the Basic Law and Article 2 of the Bill of Rights.

(2)  The Director has not considered state acquiescence.

(3)  The Board did not consider his personal background, but only considered the country of origin information.

(4)  The Director had not considered his argument.

(5)  The Board did not attain the high standard of fairness.

(6)  The Board was unfair as it did not consider his explanation.

(7)  The Board’s decision was irrational.

DISCUSSION

20.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

22.The Board, for the reasons given above, confirmed the Director’s Decision of not re-opening the applicant’s non-refoulement claim.

23.The grounds under paragraph 19 are irrelevant to the applicant’s case.

24.There is no reason that the Court should interfere with the Board’s Decision.

25.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

26.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Dated the 2^nd day of August 2024.

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