BATPUREV KHONGORZUL v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;       or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

(1)  Extension of time for the application for leave to apply for Judicial Review be granted;

(2)  Leave for the Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 14 June 2018 be granted;

(3)  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

(4)  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of Mongolia who last arrived in Hong Kong on 7 October 2009 as a visitor with permission to remain as such up to 14 October 2009 when she did not depart and instead overstayed, and was arrested by police on 29 December 2009. After she was referred to the Immigration Department for investigation, she raised a torture claim later taken as a non-refoulement claim for protection on the basis that if she returned to Mongolia she would be harmed or killed by her former boyfriend for breaking up with him. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Ulaanbaatar, Mongolia. After leaving school she did not work and cohabited with her boyfriend in District Bayangol, Ulaanbaatar.

3.  However, after his parents were killed in a car accident in 2009, her boyfriend had turned mentally unstable, emotional and depressed, and became addicted to alcohol, and whenever he was drunk, he would behave violently towards the Applicant by beating her at will.

4.  To avoid such violence and abuses, the Applicant decided to leave her boyfriend in June 2009 by departing Mongolia for China, and from there she later travelled to Hong Kong and subsequently overstayed, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 December 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer without any explanation.

5.  By a Notice of Decision dated 1 March 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her former boyfriend upon her return to Mongolia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former boyfriend to seriously harm or kill her or to still have any adverse interest in her after all these years since she left the country, that in any event it was a private relationship dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Mongolia with a large population of 3 million people spread across a vast territory of more than 1.5 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other areas of the country away from her home district in large cities such as Darkhan where it would be difficult if not impossible for her former boyfriend to locate her.

7.  On 11 September 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as it was filed outside the 14-day period from the date of the decision as required by Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a Decision dated 14 June 2018 the Board refused the Applicant’s application for late filing of her Notice of Appeal.

8.  In its decision[1] the Board found that the deadline for the Applicant to file her Notice of Appeal under the relevant rule was 17 March 2017, that the Applicant’s Notice of Appeal filed on 11 September 2017 was therefore almost 4 months late, that no explanation or reason for the late filing was given by the Applicant, and that there were no other matters known to the Board or revealed by the factual basis of the Applicant’s claim which might amount to special circumstances that might make it unjust not to allow the late filing of the Notice of Appeal.    

9.  On 14 December 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date, nor did she request any oral hearing for her application.     

10.  By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for her to file her Form 86 fell on 14 September 2018, the Applicant was therefore some 27 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of 27 months must be considered as extremely substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 14 June 2018 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.      

13.  As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge of the Board’s decision, nor did she request any oral hearing for her application. Nevertheless, given the seriousness of the issue at hand and the implication of the Board’s decision which denied the Applicant of the right to the second-tier screening of her non-refoulement claim by the Board under the Unified Screening Mechanism (“USM”) due to a procedural breach (albeit a serious one), this Court will adopt an enhanced standard in scrutinizing the Board’s reasons for refusing the late filing of the Applicant’s Notice of Appeal.

14.  From its decision as noted above, the Board was in my view certainly entitled to find the late filing of the Applicant’s Notice of Appeal a serious and significant delay and without any reason or justification provided by her, but in its consideration of all the circumstances of the case referred to in The UK Court of Appeal decision in The Secretary of State for the Home Department v Begum [2016] ECWA Civ 122 (3 March 2016) (see [18] of Board’s decision), as well as any other relevant matters of fact within the Board’s knowledge as required by Section 37ZT(2)(b) of the Ordinance, as the law then was, and to which the Board had directed itself at [10] of its decision, it seems to me that the Board had failed to take account of the merits of the Applicant’s appeal, which was held to be relevant by the Court of Appeal in Re Khan Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, as Lisa Wong J in giving judgment of the Court in the latter case stated as follows:

“23. Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”  

15.  While in the present case the Board did at [19] of its decision state that there were no other matters revealed by the factual basis of the Applicant’s claim which might amount to special circumstances which might make it unjust not to allow the late filing of the Applicant’s notice of appeal, that in itself would not in my view sufficiently amount to having taken account of the merits of the appeal by the Board in compliance with Section 37ZT(2)(b) of the Ordinance.    

16.  In the premises, and for these reasons I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

17.  Accordingly I extend time to the late application of the Applicant, and grant leave for her to apply for judicial review of the Board’s decision on the ground that in refusing the late filing of the Applicant’s Notice of Appeal the Board had failed to take account of the merits of the appeal or the substance of the Applicant’s non-refoulement claim as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Immigration Ordinance, and direct that she shall within 14 days of this decision file and issue the originating summons, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.   

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