Cuesta Lyndon Sanchez v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1651/2019

[2024] HKCFI 1164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1651 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.The applicant applies for leave to apply for judicial review of the Decision dated 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, hearing date of 10 April 2024 was fixed for him.  However, he was absent.

3.Subsequently, the court updated the applicant’s address with the Immigration Department and discovered that the applicant had moved to a new address. Another notice of hearing dated 13 May 2024 was sent to this new address for the hearing on 12 June 2024. However, he was still absent on 12 June 2024. I shall deal with his application on paper.

4.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

5.The applicant is a Filipino. He made a torture claim on 25 February 2010.  Upon the commencement of the unified screening mechanism in March 2014, his torture claim was taken to be a non-refoulement claim and assessed on all applicable grounds, i.e. Torture risk; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

The Director’s Decision

6.The applicant failed to submit his non-refoulement claim form (“NCF”) within time as directed by the Director. His application was therefore deemed to have been withdrawn on 17 February 2015.

7.The applicant applied to re-open his claim on 7 October 2016.  He was directed to provide necessary information to support his application, but he failed to comply with such direction.  On 15 February 2017, the Director rejected the applicant’s request to re-open his claim.

The Board’s Decision

8.The applicant appealed the Director’s decision to the Board on 28 September 2018. He explained that the appeal was made out of time because he lost his documents in February 2017 as his landlord had locked him out of his room after he failed to pay his rent [8].

9.The Board considered that the appeal could be justly determined without a hearing and the case was therefore proceeded on such basis [9]-[10].

10.Although the Board accepted that the applicant was locked out of his room in February 2017, it noted that the lockout happened two years after he was required to submit his NCF, so that he still failed to explain his failure to submit the NCF back then in 2015. The Board was therefore not satisfied that the applicant was unable to return the NCF as required due to circumstances beyond his control [11]-[14].  It dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 17 June 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, the applicant said his life is still in danger if he returns to the Philippines.

DISCUSSION

13.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).

14.The question for this Court is whether the Board was right to uphold the Director’s Decision refusing to allow the applicant to re-open his claim, which was deemed to have been withdrawn because he failed to submit the NCF to the Director.

15.Under section 37ZG of the Ordinance, the applicant’s application is deemed to have been withdrawn if he did not return a completed NCF within the time as directed by the Director.  He may apply to re-open his claim withdrawn if he is able to provide written evidence to satisfy the immigration officer that he had exercised all due diligence, and yet, was unable to do so because of circumstances beyond his control[1].

16.The Board had considered the applicant’s explanation for failing to submit the completed NCF to the immigration officer as directed.  The Board had given the reasons below to dismiss his appeal and confirmed the Director’s Decision refusing to re-open his claim:

“12. I accept that the Appellant was locked out of his room in February 2017 but that alone does not explain why he did not follow up his USM claim or contact his lawyer at the time he was advised he had been given legal assistance. Indeed, the lockout happened two years after he was to submit the form.

13. The Appellant has in fact provided no explanation at any point in time for why he did not return the NCF by the due date or why he did not contact his lawyer or seek an extension of time. He was given several opportunities in 2016 and January 2017 to explain what had happened but he failed to do so.

14. As the Appellant has not provided an explanation for why the form was not filed, I am not satisfied that he was not able to return the completed form as required due to circumstances beyond his control.

15. For the reasons set out above, I am not satisfied that the Appellant’s USM claim should be re-opened. The Appellant’s appeal is refused and the decision of the Director dated 15 February 2017 is confirmed.”

17.The applicant was clearly in breach of the law for failing to submit the NCF to the immigration officer.  He did not have any satisfactory explanation for his failure to do so. The Board was right to implement the law accordingly.

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

CONCLUSION

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

Dated the 20^th 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