SUNIL KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2210/2018

[2022] HKCFI 1148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2210 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being absent in open court;

There be an extension of time for the application for Judicial Review &

the application for Judicial Review be granted. 

The applicant shall take out an originating summons within 14 days after this Order for his application in accordance with Order 53, rule 5 of the RHC.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 9 March 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 11 October 2018 is late for 16 months and 2 days. I shall deal with this issue below.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a national of India.  He last entered Hong Kong on 23 October 2015 as a visitor and was refused permission to land.  During the examination with the Immigration officer, he stated that he came to Hong Kong for sightseeing and visiting a friend.  Thereafter, on the same day, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Harvinder Kalyan (“Kalyan”) and Jaipal Sharma (“Sharma”) who were members of Bharatiya Janata Party (“BJP”).

5.  According to the applicant, he was a supporter of Congress Party (“CP”) and in the upcoming election in summer 2010, he helped promote the Indian National Lok Dal Party (“INLD”), the opposition of BJP.  The INLD won the election.  As a result, Kalyan and Sharma started to threaten the applicant as they blamed him for the BJP’s loss.  In 2013 to 2015, the applicant went to Saudi Arabia to work.  Upon his return in 2015, the BJP came into power.  One week later, he was attacked by Kalyan and Sharma, whom he believed to be taking revenge for the previous loss in election.

6.  Kalyan and Sharma also spread rumors about the applicant being converted from Hindu to Islam and started eating beef.  Such rumors resulted in the threats from 50 to 60 villagers against the applicant.  The applicant then made the first attempt to escape to Hong Kong in 2015.  However, when he was deported back to India, he encountered another attempted attack from Kalyan but he managed to escape.  Out of fear, he eventually fled to Hong Kong for protection.  Details of the fact were set out at paragraph 6 of the Notice of Decision dated 25 January 2016 by the Director (the “Director’s First Decision”) described below.

The Director’s Decisions

7.  The Director considered the applicant’s claim in relation to the following risks:

(1)     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)     risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

(4)     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s First Decision, the Director refused his claim on Torture risk, BOR3 risk and Persecution risk.  The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) it was not accepted that Kalyan, Sharma or the villagers would have a continuous adverse interest on the applicant [18]; (ii) state protection was available to him [19]-[27]; and (iii) internal relocation was an option open to him [28]-[33]. 

9.  In the Notice of Further Decision dated 28 November 2016, the Director also rejected the applicant’s claim on BOR2 risk for the reason that there was no evidence to show that his right to life would be violated upon his return.   

The Board’s Decision

10.  On 30 December 2016, the applicant filed a notice of appeal/petition against the Director’s First Decision.  The time limit for the applicant to lodge an appeal against the Director’s First Decision expired on 8 February 2016.  Thus, the applicant was more than 10 months out of time.

11.  The Board considered whether to allow the applicant’s late filing under section 37ZT of the Ordinance.  In the notice of appeal/petition, the applicant simply stated that the delay was due to his change of address [9].  The Board found that he failed to submit any documentary proof for his change of address [11] and noted that he was legally represented before the Director.  As a result, the Board found that he must have received the Director’s First Decision.  Thus, the Board rejected his explanations [14]-[18].  It further observed that the applicant’s conducts showed that he was not interested in knowing the result of his claim and thus contradicted with someone who was genuinely in need of protection [19]-[20].

12.  For the above reasons, the Board refused to allow the applicant’s late filing of the notice of appeal/petition against the Director’s First Decision.

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 11 October 2018 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, he said the Board’s Decision disregarded the danger and threats he faced in his country if he is deported back to India.

DISCUSSION

15.  As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  It is apparent that the Board, pursuant to section 37ZT of the Ordinance, refused to extend time for the applicant to file his notice of appeal is based upon the fact that it was not satisfied with the explanations given by the applicant for his delay, which is significant and serious. There is no evidence that the Board had considered the merits of the applicant’s case by reference to the Director’s First Decision, which was, no doubt, on the file for the appeal or in the hearing bundle.

19.  In Re Khan Kamal Ahmed [2019] HKCA 377, the Court of Appeal held:

“16. Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.

17. Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

20. … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

20.  Although the Board’s Decision predates the Court of Appeal’s decision, the legal principles of the above case apply and the Board had therefore, committed an error in law. On this basis, the applicant has a realistic chance of success in his intended application for judicial review.

21.  I note that section 37ZT of the Ordinance has been amended and is operative on 1 August 2021. The new section reads:

“ Late filing of notice of appeal

(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 all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(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 the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)”

22.  If the case is remitted back to the Board for re-consideration, either by the same Board or another Board, the case should be considered under the law before the enactment of the amended version of section 37ZT, which does not have retrospective effect.

23.  On this basis, I consider that the applicant has a realistic chance of success in his intended judicial review.

CONCLUSION

24.  Accordingly, I extend time for the applicant to file Form 86 for this application and I grant leave to the applicant to apply for judicial review of the Board’s Decisions. The applicant shall take out an originating summons within 14 days after this Order for his application in accordance with Order 53, rule 5 of the RHC.

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