DARA SINGH v. MS WONG HING CHUN, ADJUDICATOR OF THE NON REFOULEMENT CLAIMS

HCAL 207/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 207 OF 2015

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J U D G M E N T

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A.   INTRODUCTION

1.  This is the applicant’s judicial review against the decision of the Torture Claims Appeal Board (the “Appeal Board”) dated 16 June 2015 (the “Appeal Board’s Decision”), refusing the applicant’s application for the late filing of his Notice of Appeal/Petition dated 27 February 2015.

2.  By a Summons dated 29 September 2016 (the “Applicant’s Summons”), the applicant applies for leave to amend the Originating Summons, in particular to amend his grounds of review.  The proposed amendments are at paragraphs 2(1)-(2) and 2(5), and also paragraph 3 of the draft Amended Originating Summons.

3.  This is the hearing of the Applicant’s Summons, as well as the substantive hearing of the applicant’s application for judicial review in respect of the Appeal Board’s Decision.

B.   BACKGROUND

4.  Very briefly: –

(1) By a Notice of Decision dated 12 December 2014, the Director of Immigration (the “Director”) rejected the applicant’s claim for non-refoulement protection (the “Director’s Decision”).

(2) The applicant ought to have lodged his Notice of Appeal/Petition against the Director’s Decision within 14 days, namely by 26 December 2014, but was late and lodged his Notice of Appeal/Petition on 27 February 2015.

(3) By the Appeal Board’s Decision dated 16 June 2015, the Appeal Board made a determination on the late filing of the appeal/petition pursuant to section 37ZT of the Immigration Ordinance, Cap 115 (“IO”) and paragraph 9 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme.  The Appeal Board found against the applicant.  The Appeal Board held that the applicant had failed to show any “special circumstances” to justify the late filing of the Notice of Appeal.  Further, the Appeal Board held that it could not find any fault in the Director’s Decision.

5.  The applicant applied for leave to apply for judicial review of the Appeal Board’s Decision by his Form 86 dated 26 October 2015, which was later amended on 26 January 2016 when the Director was joined as the interested party.

6.  Following consideration of the documents and without an oral hearing, this court granted leave to the applicant to apply for judicial review against the Appeal Board’s Decision only on the 1^st Ground and the 2^nd Ground included in the Form 86.

7.  On 26 January 2016, the applicant commenced these proceedings by Originating Summons.

8.  By a comparison of the draft Amended Originating Summons with the Amended Form 86, one can see that the original challenge that the Appeal Board’s Decision was unlawful by reason of the Appeal Board’s failure to take into account the substantive merits of the appeal is removed.  Instead, it is contended that the substantive merits are not a relevant matter within section 37ZT(2) of the IO, and the Appeal Board should not have considered the merits of the applicant’s appeal in making a determination under section 37ZT of the IO.  It is pleaded alternatively that if it was open to the Appeal Board to take into account the substantive merits of the applicant’s appeal, such exercise as recorded in paragraph 13 of the Appeal Board’s Decision was manifestly inadequate.

C.   APPLICANT’S APPLICATION TO AMEND ORIGINATING SUMMONS

9.  In the present case, I take into account that the Applicant’s Summons for leave to amend was taken out on 29 September 2016, well before any substantive hearing was set down for this application for judicial review.  This is not the situation where, for example, new grounds are proposed only at the substantive hearing itself.

10.  Further, the proposed amendments relate to the same issue as that identified in paragraph 10 of the Amended Form 86, for which leave has already been granted, namely the question of whether the Appeal Board ought to have considered the substantive merits of the applicant’s appeal.  The proposed amendments also relate to this topic.

11.  Given the common topic addressed in both paragraph 10 of the Amended Form 86 and the now-proposed grounds in the draft Amended Originating Summons, there is no attempt by the applicant to extend in a vague and ill-defined way the grounds upon which relief is sought.  The main issue for consideration remains the extent to which the substantive merits of the applicant’s case ought to be considered.  I agree that no prejudice would be caused to the respondent or interested party by the proposed amendments.

12.  Accordingly, I make an order in terms of the Applicant’s Summons dated 29 September 2016.

D.   APPLICANT’S GROUNDS FOR REVIEW

13.  The applicant’s submissions can be summarised as follows: –

(1) In making the section 37ZT determination, the Appeal Board erred in not taking into account the fact that the applicant was held in detention, deprived of his personal freedom and under a lot of mental stress.

(2) The substantive merits of the applicant’s appeal are not a relevant matter within section 37ZT(2) of the IO which the Appeal Board ought to have considered when rejecting the applicant’s application for late filing of the Notice of Appeal/Petition.

(3) Alternatively, insofar as the court considers that it was open to the Appeal Board to take into consideration the substantive merits of the applicant’s appeal, the consideration by the Appeal Board in the present case was manifestly inadequate.

D1.   Appeal Board’s refusal to take into consideration the applicant’s detention, deprivation of personal freedom and severe mental stress

14.  In the present case, the Appeal Board considered the fact that the applicant was held in detention, deprived of his personal freedom and under a lot of mental stress, but was of the view that this did not constitute any special circumstance to justify the late filing of the Notice of Appeal under s.37ZT of the IO.  In particular, the Appeal Board considered that: –

(1) The applicant had not given sufficient explanation as to why he was so stressed despite being assisted by his Duty Lawyer Service (“DLS”) lawyer and case officer;

(2) The applicant must have been told by his DLS lawyer about the importance of the deadline for filing the Notice of Appeal/Petition; and

(3) It was incumbent upon the applicant to obtain documents to show the intensity of the stress while he was in prison.

15.  The applicant submits that the Appeal Board erred in not taking into account the applicant’s mental stress when making its section 37ZT determination.  The applicant further submits that in order to meet the required high standards of fairness, the Appeal Board ought to have made enquiries with the applicant to address its concerns as summarised in the preceding paragraph, and ought not to have speculated about what the DLS lawyer had or had not told the applicant.

16.  I do not agree with the applicant’s submissions.

17.  In so far as the applicant submits in that in order to meet the required high standard of fairness, the Appeal Board ought to have made enquiries with the applicant to address its concerns and ought not have speculated on what the DLS lawyer had or had not told the applicant, as held by this court in ASM v Torture Claims Appeal Board, HCAL 37/2015 (Judgment dated 17/08/2016) at paragraph 25, there is no legal basis or authority to support the contention that there was a duty on the part of the Appeal Board to further inquire with the applicant before deciding whether to allow the late filing.  As held by Au J in Rafaqat v William Lam, HCAL 119/2012 (Judgment dated 9/05/2014) at paragraphs 65 and 66, the reasons for delay in submitting a petition, and the documents in support of that, must be within the applicant’s own knowledge and possession and therefore entirely within his own ability to provide.  It was held that even under the high standards of fairness, it cannot be right to suggest that there was a legal duty imposed on the adjudicator to make inquiry in his disposition of the applicant’s lateness to lodge the petition.

18.  In so far as the applicant relies on Satbinder Singh v Wesley Wong, HCAL 133/2015 (Judgment of Wong J dated 7/10/2016) at paragraph 31 (where the learned judge said he did not think it desirable to hold that under no circumstances would it be fair and appropriate for the adjudicator to make further enquiries before he makes a decision), it does not appear that the learned judge was referred to Rafaqat cited above.  Further, that case was decided without the benefit of any representation and submissions on behalf of the Director or the adjudicator.

19.  For the reasons stated above, this ground of judicial review is rejected.

D2.    The Appeal Board ought not to have considered the substantive merits of the applicant’s appeal in dismissing the applicant’s application for late filing of the Notice of Appeal/Petition

20.  The applicant’s submission is that the Appeal Board erred in purporting to consider the substantive merits of the applicant’s appeal in rejecting his application for late filing of the Notice of Appeal/Petition.

21.  In so far as it is contended by the applicant that it is impossible (ie in every case) to consider the substantive merits of the applicant’s appeal with the requisite high standard of fairness in a preliminary determination without a hearing, I do not agree.

22.  As held by this court in ASM v Torture Claims Appeal Board, Supra at paragraph 31, as a matter of principle there seems to be no good reason why a decision maker cannot in a suitable case have regard to the underlying merits when considering the procedural question of whether an appeal should be allowed to go ahead.

23.  An example has been given in ASM, where at paragraph 30 this court held as follows: –

“… In fact, I agree with the applicant when he stated...that the [Appeal Board] can only consider the merits to the extent that it is fair to do so as a preliminary decision without any oral hearing - for example when the applicant is legally represented, and the appeal submissions reveal a clear error of law on the part of the first instance decision maker, which necessitates the granting of a full appeal.”

24.  Having said that, as confirmed by Ms Queenie Lau, counsel for the applicant, it is not the applicant’s case that his appeal is of such obvious merits that it should be allowed to proceed notwithstanding any time requirement.  The applicant has not pitched this case as one where the applicant has on the face of it a very strong case to appeal against the Director’s Decision, so that it would be unjust not to allow the late filing of the appeal.

25.  Simply put, this is not a case where the merits should be considered at all without an oral hearing, for the purpose of making the preliminary decision whether the Appeal Board ought to allow the late filing of the applicant’s appeal.

E.   CONCLUSION

26.  For the above reasons, I dismiss the judicial review application to challenge the Appeal Board’s Decision.  The applicant has not been able to show that the Appeal Board erred in coming to the view that there was no “special circumstances” to justify the late filing of the Notice of Appeal under section 37ZT of the IO.

27.  As the applicant has failed in this application, costs should follow the event.  I make an order that the costs of the application be paid by the applicant to the Director, such costs are to be taxed if not agreed.

28.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

29.  I further order that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

30.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.