JASDIP SINGH v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1048/2017

[2019] HKCFI 1011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1048 of 2017

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 the Applicant being present / absent in open court;

1.  an extension of time be granted to the applicant for the application for leave to apply for Judicial Review of the decision of the Torture Claims Appeal Board (“the Board”) made on 25 June 2015 (“the Board’s decision”);

2.  leave be granted to the applicant to apply for judicial review of the Board’s decision on the following grounds:

(i)  the Board’s finding that the applicant could have obtained assistance from the Duty Lawyer Service to complete his notice of appeal within time was Wednesbury unreasonable; and

(ii)  the Board had failed to consider the substance of the applicant’s non-refoulement claim before refusing the late filing of his notice of appeal, which is a relevant matter of fact within the Board’s knowledge under section 37ZT(2)(b) of the Ordinance;

3.  the applicant shall file and serve an originating summons within 14 days of the receipt of the decision hereof by him; and

4.  the applicant to serve a copy and all relevant documents on the Board as the respondent and the Director of Immigration as the interested party.

Observations for the Applicant:

1.  The applicant is a 46-year-old national of India who last arrived in Hong Kong on 9 April 2008 with permission to remain as a visitor up to 27 April 2008 when he did not depart and instead overstayed until 13 May 2008 when he was arrested by police.  After he was referred to the Immigration Department for investigation, he lodged a torture claim which was later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his father’s creditor for failing to repay his debt after his father had passed away.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Jagraon, Ludhiana, India.  After leaving school he worked as a mechanic in a repair shop in his home village.

3.  In 1992 he first came to Hong Kong as a visitor, but after losing his passport he overstayed in Hong Kong until 1998 when he was arrested by police and was subsequently repatriated to India.

4.  In 2000 he suffered a serious injury in a traffic accident in Moga and was hospitalized for several months during which he had had three operations, and for which his father had to borrow 800,000 Indian rupees from a friend KS to meet his medical expenses.

5.  However, in 2002 his father passed away without paying off his debt to KS, and as a result KS had been pressing the applicant for repayment, and when the applicant was unable to do so, KS would come to his home with his men to threaten him and his mother that they would be killed if the loan remained unpaid, and on one occasion they even broke the applicant’s left arm with wooden sticks as a warning to him.

6.  The applicant did not report the matter to the police because KS was a wealthy and influential man in the village, and fearing for his own safety he decided to leave India in 2004 for short stays in Thailand, China and Hong Kong, but when his visas in those places expired, he returned to India in February 2005 to stay at his aunt’s place in Ludhiana City and later in Jagraon for more than two years without incidents, but in 2008 he heard from his mother that KS and his men were looking for him in Jagraon, he decided to leave India again, which he did in March 2008 for China, and from there he came to Hong Kong in April 2008 where he overstayed and raised his torture claim which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, for which he completed a Supplementary Claim Form on 24 January 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 7 May 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

8.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm to the applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from KS and his men, that KS only wanted his money back without any real intention to seriously harm or kill the applicant, that it was a private monetary dispute between them 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 India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of India away from his home district in large cities such as New Delhi, Mumbai, Chennai or Bangalore where it would be difficult if not impossible for KS or his men to locate him.

9.  On 26 May 2015 the applicant filed his Notice of Appeal/Petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but by then he was late by five days as section 37ZS of Part VIIC of the Ordinance requires that the notice must be filed within 14 days of the Director’s decision unless its late filing is allowed under section 37ZT which provides that:

“ (1)  If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a)  must include a statement of the reasons for failing to file the notice within that period; and

(b)  must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(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 reasons 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.”

10.  In his Notice of Appeal/Petition dated 26 May 2015, the applicant gave the following reasons for his failing to file the notice within the 14-day period:

“ Section 5—

The reason I could not submit the appeal in time to you is that I tried to find somebody to write in English and in time I could not find somebody to fill up the form that is the reason for delay.  Kindly accept my completed form and appreciate if you can grant me necessary settlement on compassionate grounds.”

11.  The applicant did not produce any documentary evidence in support of his statement, and on 25 June 2015 the Board refused to allow his late filing of the notice of appeal for the following reasons:

“ 6.  In his letter rejecting the Applicant’s claim for non-refoulement protection dated 7 May 2015 and sent to him through the offices of the Duty Lawyer Service, the Director drew the Applicant’s attention to his right to appeal/petition his decision within 14 days and enclosed in his letter the appropriate notice of appeal/petition.

7.  The time by which the Applicant needed to file his notice of appeal/petition expired on 22 May 2015 but it was not until 26 May 2015 that the Board received the Applicant’s notice.

8.  In his reasons for the late filing of the notice of appeal/petition contained in Section 5 of the form, the applicant indicated that he submitted the Notice of Appeal/Petition late as he had been trying to find someone to assist him to write the form in English for him but was unable to do so in time.

…

10.  If the time limit for filing an appeal is not complied with, the complainant is obliged to give reasons for non-compliance, accompanied by any documentary evidence in support of those reasons. The Board must then, taking into account only those reasons and supporting documentary evidence, if any, decide whether or not to allow late filing. This will only be allowed where the Board is satisfied that, by reason of special circumstances, it would be unjust not to do so.

11.  Whilst I am happy to accept that the Applicant may not be proficient in the English language, I do not accept that he was unable to obtain assistance in relation to this within the prescribed time limit for filing the notice. In this regard, I note that the Notice of Decision from the Director dated 7 May 2015 was sent to the Applicant through the offices of the Duty Lawyer Service. I have little doubt that had the Applicant informed the Duty Lawyer Service of his difficulty with English and thereby his difficulty in completing the form, he would have received appropriate assistance. This application is devoid of any merit.

12.  There are no other relevant matters of fact within my knowledge amounting to special circumstances which would make it unjust not to allow the late filing of the Applicant’s notice of appeal/petition.

13.  I refused the application.”

12.  On 11 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely exhibited a copy of the Board’s decision.

13.  By then the applicant was again late with his Form 86, and this time seriously so, 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 date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

14.  In the applicant’s case, the last day of the three-month period within which he was to file his Form 86 fell on 25 September 2015, and hence he was late by more than two years, or 26 months to be exact, 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15.  A delay of more than two years in the applicant’s case must be regarded as very substantial and excessive, for which as noted above he did not give any explanation, and as such I do not accept that he has provided any good reason for his serious delay.

16.  As for the merits of his intended application, which is a crucial factor in the Court’s exercise of its discretion as to whether to extend time, but again as noted the applicant did not put forward any ground for his intended challenge.

17.  Nevertheless, given the fact that he is unrepresented and given the nature of his claim that his “life and limb” are at stake, high standards of fairness require that the Court should proceed to consider the Board’s decision to refuse his late filing of his notice of appeal/petition with rigorous examination and anxious scrutiny, of which I now propose to do.

18.  Firstly, it is my judgment that a delay of five days in filing the notice of appeal cannot, on any view, be regarded as significant, especially in the circumstances of the applicant for which he had given his explanation and whom the Board readily accepted may not be proficient in the English language, but there was simply no proper basis for the Board to assume that had the applicant informed the DLS of his difficulty with English and thereby his difficulty in completing the form that he would have received appropriate assistance, as it is clear that the applicant was by then no longer represented by the DLS, and there was no evidence that he had approached DLS for assistance or that he would have received it had he done so.  It was simply an assumption by the Board without any evidential basis.

19.  More importantly, the Board did not proceed to consider the merits, if any, of the applicant’s appeal, as part of the relevant matters of fact within the Board’s knowledge under section 37ZT(2)(b) to decide whether by reason of special circumstances that it would be unjust not to allow the late filing of the notice of appeal, as the Court of Appeal so held in Re Qasim Ali [2019] HKCA 430 (CACV 547/2018, 8 April 2019), when Lisa Wong J in giving judgment of the Court stated:

“ 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.” 

20.  In the premises I am of the view that similarly it is reasonably arguable that (1) the Board’s finding that the applicant could have obtained assistance from DLS to complete his notice of appeal within time was Wednesbury unreasonable; and (2) that the Board had failed to consider the substance of the applicant’s non-refoulement claim before refusing the late filing of his notice of appeal, which is a relevant matter of fact within the Board’s knowledge under section 37ZT(2)(b) of the Ordinance.     

21.  For the reasons given and notwithstanding the serious delay of the applicant’s present application before me, I extend time for his late application and grant leave for him to apply for judicial review of the Board’s decision on the grounds stated above, for which the applicant shall file and serve an originating summons within 14 days of the receipt of this decision by him, and to serve a copy and all relevant documents on the Board as the respondent and the Director as the 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