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
|Rashid Zafar Ghori
|Torture Claims Appeal Board
|Director of Immigration
|Putative Interested Party
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
||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...