RE HARPAL SINGH

CAMP 187/2024, [2025] HKCA 659

On Appeal From [2023] HKCFI 1231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 187 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 1947 OF 2019)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.  On 10 July 2019, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 1947/2019 out of time.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 14 March 2019 which dismissed his appeal/petition (out of time) against the decision of the Director of Immigration (‘the Director’) dated 24 July 2017 rejecting his non‑refoulement claim.  On 9 May 2023, Deputy High Court Judge To refused to grant extension of time and dismissed the application for leave to apply for judicial review.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 23 May 2023).  Being out of time for almost two months, the applicant took out an application on 20 July 2023 before the Judge requesting an extension of time to appeal.  The Judge on 5 September 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 26 September 2024, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

4.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and exhibits to the applicant’s affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.  The applicant is an Indian national.  He first entered Hong Kong as a visitor in May 2007.  In February 2009, he was arrested for overstaying.  In March 2009, he raised a torture claim.  In the years that followed, he repeatedly tried to withdraw his torture claim and then re-open it again.  Ultimately, upon implementation of the Unified Screening Mechanism, the applicant raised a non‑refoulement claim in January 2017 alleging that if he returned to India he would be harmed or killed by his girlfriend’s family due to religious differences, and his uncles due to a land dispute[1].

6.  The background facts have been summarized in the decision of the Judge at [4].

3)  The Director’s Decision

7.  The Director decided against the applicant’s non‑refoulement claim.  The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), BOR Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

8.  After a delay of more than nine months, the applicant appealed to the Board.  The Board dismissed the applicant’s late appeal on 14 March 2019.  The Board based its decision under section 37ZS and/or section 37ZT of the Immigration Ordinance (Cap. 115) (‘Ordinance’)[2]. The Board did not go into the merits of the applicant’s case.  The Board’s decision was :

‘ 10. Section 37ZT of the Ordinance also provides that the TCAB must decide as a preliminary decision without a hearing whether the application for late filing of the Notice of Appeal will be allowed. However, in so deciding, the TCAB may only take into account -…

(i)    the statement of reasons…

(ii)   accompanying documentary evidence...

(b)   any other relevant matter of fact within the knowledge of the TCAB.

…

13. ...His reason for late filing was that he received the Appeal/Petition form on 15 May 2018 and did not have any immigration officer’s documents relating to the Non-refoulement claims.

...

15. ... I noted that an appeal form was provided together with the Director’s Notice of Decision when it was served on the Appellant via the DLS on 24 July 2017, and when served again on the Appellant by post to his last reported address on 31 July 2017...It was noted that the Appellant only sought to file Notice of Appeal after he was detained...on 5 May 2018. He had legal representation from ...DLS, and the DLS ceased to act for him on 28 July 2017... His reason that he received the Appeal/Petition form from the TCAB on 15 May 2018 and he did not have any immigration officer’s documents relating to the Non-refoulement claims, was therefore not a good reason for his late filing of the Notice of Appeal. In any event, his late filing of the Notice of Appeal for 9 months and 2 days would show that he had not promptly dealt with the submitting of the Notice of Appeal, to have it filed within the prescribed time limit.

16. Following...United Kingdom Begum case,...delay of 9 months and 2 days...is a serious and significant failure to comply with the rules.

17. Secondly, I do not find the Appellant’s reason for late filing acceptable...In all the circumstances, the Appellant would have no good reason for the breach.

18. Following the 3rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

19. There were no other matters known to me or revealed by the factual basis of the Appellant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.

20. Accordingly, I refuse the Appellant’s application for late filing of the Notice of Appeal.’ (emphasis added)

5) Decisions of the Judge

9.  In his decision dated 9 May 2023, the Judge considered the applicant’s leave for judicial review application.  The Judge in his decision held :

‘16. The essence of the Applicant’s ground of judicial review is that he disagreed with the Director’s finding that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to India. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality. More importantly, this ground does not address the late filing of the NOA which is what the Decision is about.

 Conclusion

 17. ...It was on that basis that the Board found that his late filing was a serious and significant failure to comply with the rules, that he had failed to give reasonable explanation for his late filing, and that there are no special circumstances which might make it unjust not to allow the late filing. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law...The Court could not detect any error of law...

18. For the above reasons, extension of time for filing the Form 86 and the application for leave to apply for judicial review are refused.’  (emphasis added) 

10.  In his decision dated 5 September 2023, the Judge held that despite the applicant’s further explanation that he had problems with his landlord and left his residential address without informing the Immigration Department, as a matter of law, it is the applicant’s duty to give the authority an address to which correspondence or notice can come to his attention in a timely manner.  The Judge repeated that he could not detect any error of law in the Board’s Decision[3].  The application for extension of time for appeal was refused. 

6)  Legal principles

11.  In considering whether to extend time for appeal, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal; and

(4)  prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

12.  Under Section 37ZS(1) of the Immigration Ordinance (Cap. 115), the applicant had 14 days after notice of the Director’s Decision was given to file a notice of appeal/petition to the Board[4]. As the Director’s Decision was sent by post to the applicant’s last reported address on 31 July 2017[5], Practice Direction 19.2 at [2(b)] would make delivery being effected on 2 August 2017, the second working day after posting on 31 July 2017 for ordinary post.    

13.  The deadline to take out a notice of appeal/petition by the applicant before the Board was then 16 August 2017[6]. The applicant was about 9 months and 2 days late when he filed his notice of appeal/petition before the Board on 18 May 2018[7].  The applicant’s reason for the delay was that he merely received the Director’s Decision on 15 May 2018.  He complained that he did not have any immigration officer decision documents which are related to the non‑refoulement claim[8].  The Board held that such explanation was not a good reason for his late filing for over nine months.  In any event, the late filing shows that the applicant had not acted promptly to file within prescribed limit[9]. The Judge held that the applicant’s further explanations before him also did not assist the applicant when he said that he was detained in prison for six to seven months prior to 5 May 2018.  Working six to seven months backwards from May 2018 would make November 2017 to be about the time the applicant commenced prison terms[10].  The applicant was notified at his last known address in July/August 2017 of the Director’s Decision, and this was before he served prison terms.

(2)  Prospect of the intended appeal

14.  The applicant’s summons and affirmation do not contain any proper ground of appeal.  In the applicant’s exhibits to his affirmation, the applicant made bare assertions without evidence in support that are within the province of the Board[11].  The applicant also made general statements of law and statutory reference that are used in non‑refoulement cases without particularizing how those principles related to the applicant’s case[12].

15.  However, we are concerned about the manner in how the Board dealt with the applicant’s appeal/petition.  In Re Qasim Ali [2019] HKCA 430, Lisa Wong J in delivering the decision of the Court of Appeal held :

‘ 9. Section 37ZT then continues to provide:

“(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.” (emphasis added)

…

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.

28. We are mindful of the fact that this is not exactly how the applicant argued this appeal in his notice of appeal or submission.

29. As stated in paragraph 19 above, the Court of Appeal considers the decision of the judge at first instance in light of the grounds of appeal raised by the applicant. We have no intention to derogate from such principle. Nevertheless, this Court has a discretion, not to be exercised lightly, to allow new grounds to be canvassed in the interest of justice. See, for example, Re MD Zahidur Rahman Manik, CACV 314/2018, [2018] HKCA 766, 29 October 2018; and Re Khan Kamal Ahmed, supra.’ (emphasis added)

16.  See also this Court’s Decision in Villarosa Rhea Limbaga [2024] HKCA 95.

17.  We are aware that section 37ZT(2)(b) of the Ordinance has been amended in 2021 and it no longer contains the words ‘any other relevant matters of fact within the knowledge of the Board’.  However, in the Board’s Decision of 14 March 2019 at [10], these words were quoted almost in verbatim meaning that the Ordinance was not amended at that time.  The reasoning of Lisa Wong J in Re Qasim Ali applies.  The Board did not consider the merits of the applicant’s case.  The Judge in his decision in 2023 held that the applicant’s ‘serious and significant failure to comply with the rules’ (i.e. late filing of notice of appeal/petition) was the ‘finding of facts which are exclusively within the province of the Board’[13].  However, it is clear that the procedural irregularity here is that the Board did not consider the merits of the applicant’s case and proceeded to refuse the applicant’s late filing of his notice of appeal.  The Board ought to have, under section 37ZT(2)(b) of the Ordinance, taken into account the merits of the appeal albeit on paper without a hearing, regardless of the procedural breaches or the lack of explanation therefor.

18.  For these reasons, we are of the view that the intended application for judicial review is reasonably arguable.

8)  Disposition

19.  As the intended appeal is reasonably arguable, we will grant extension of time to appeal to the applicant.  The applicant is required to file a notice of appeal within 28 days from the date of this decision.