ASM v. TORTURE CLAIMS APPEAL BOARD

HCAL 37/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 37 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 (“TCAB’) to refuse the applicant’s late filing of a Notice of Appeal under section 37ZT of the Immigration Ordinance, Cap 115 (“IO”).

2. The applicant is a national of Pakistan.  He fled his home country and arrived in Hong Kong on 20 July 2007 for the purposes of seeking non-refoulement protection.  The applicant allegedly fears severe mistreatment and torture from Jihadi groups in Pakistan as a result of his refusal to participate in Jihadist activities, and his escape from Jihadist camps which he was held at prior to his escape to Hong Kong. 

3. The applicant had on 28 April 2014 lodged claims for non-refoulement protection with the Immigration Department on the grounds that he is in danger of being subjected to treatment amounting to: (i) Torture as defined in Part VIIC of the IO (incorporating the definition of torture as provided under Art 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment); (ii) Cruel, Inhuman Degrading Treatment or Punishment (“CIDTP”) contrary to Art 3 of the Hong Kong Bill of Rights; and (iii) Persecution as defined in the Refugee Convention (“Persecution”).  The details of his claim are set out in his Non-refoulement Claim Form submitted dated 28 April 2014.

4. The applicant’s claim for non-refoulement protectionwas dismissed by the Director of Immigration (“Director”) by a Notice of Decision dated 28 August 2014. The contents of this Notice was not however interpreted and explained to the applicant (with the assistance of an Urdu interpreter) until he met with his Assigned Duty Lawyer on 5 September 2014.  At this meeting, the applicant was advised by the Assigned Duty Lawyer that there were in his opinion no merits in the appeal, and that legal representation would no longer be offered to him. He was further advised of the relevant appeal procedures. 

5. The applicant proceeded to appeal against this decision as a self-represented litigant.  He was by section 37ZS of the IO required to file the Notice of Appeal within 14 days (ie by 11 September 2014).  In fact, the applicant filed the application 7 days late on 18 September 2014, and his application for late filing of the appeal under section 37ZT of the IO was refused by the TCAB.  The reasons for this are set out in a Note for File prepared by its Deputy Chairman Mr William Lam on 7 October 2014, and are that:

(1) there was no reasonable excuse to justify the applicant’s delay in filing the appeal, and there was no basis to exercise the statutory discretion to extend time (paragraph 3); and

(2) “for the sake of completeness”, there is in any event no “arguable merit” in the applicant’s appeal, and there is insufficient evidence to establish a case for non-refoulement protection under the prescribed grounds (paragraphs 4, 38‑39). 

6. Ms Denise Souza, counsel for the applicant, submitted that in circumstances where a plausible and credible explanation is provided for delay by an unrepresented litigant, and in view of the potential consequences at stake, it is unreasonable and unfair to conclude that a mere delay of 7 days is inexcusable.  The discretion to extend time should in these circumstances have been exercised by the TCAB in the applicant’s favour. 

7. Ms Souza further submitted that it was inappropriate for the Deputy Chairman to conclude on an additional basis that the late filing of the appeal should not be allowed because there is no merit in the appeal.  This was concluded after the Deputy Chairman had assessed, as a preliminary decision without an oral hearing, the applicant’s evidence and credibility in his substantive non-refoulement claim.  The applicant submitted that such a summary determination of the substantive merits on the papers whilst making a procedural decision under section 37ZT of the IO is impermissible.  This is particularly where material findings of fact and credibility are made against the applicant.  There is no statutory appeal mechanism against a decision under section 37ZT of the IO, and it has the effect of finally determining the applicant’s non-refoulement claim, rendering him liable to removal from Hong Kong.

8. The applicant applied to judicially review the TCAB’s decision (“Decision”) by a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) and supporting affidavit dated 12 March 2015.  Leave to Apply for Judicial Review was granted to the applicant on the papers by an order of this court dated 8 May 2015.  Leave was granted in respect of all three grounds of challenge specified in paragraph 6 of the Form 86, namely:

(1) The TCAB’s refusal of the application for a late filing of the appeal under section 37ZT(3) of the IO on the basis that there is “no reasonable excuse” for the delay is Wednesbury Unreasonable and/or an error of law (Ground 1);

(2) The TCAB’s refusal of the application for late filing of the appeal under section 37ZT of the IO on the basis of a preliminary assessment of the merits is an error of law and/or an unlawful exercise of statutory discretion (Ground 2); and

(3) Whether, in the circumstances of this case, the TCAB’s preliminary assessment of the applicant’s claim on the merits without granting an oral hearing to the applicant is procedurally unfair (Ground 3).

9. TCAB has taken a neutral stance in this application and has been excused from attending the hearing. The Director is joined as an interested party and was represented at the hearing by counsel, Ms Grace Chow.

B.  RELEVANT STATUTORY PROVISIONS

Appeals to the TCAB

10. A statutory appeal mechanism to the TCAB is created by section 37ZR of the IO which provides that “a person aggrieved by a decision of an immigration officer may appeal to the [TCAB] if the decision is made in respect of the person under … (b) section 37ZI(1)(b) (decision rejecting a torture claim); …”.  It is similarly provided in section 37ZQ of the IO, the provision establishing the TCAB, that it is empowered to hear and determine appeals made under section 37ZR: see section 37ZQ(2) of the IO. 

11. The procedures for lodging an appeal are prescribed by section 37ZS(1) of the IO, which states that a person who wishes to appeal against a decision must file with the TCAB a Notice of Appeal within 14 days after notice of the decision is given, unless late filing of the Notice is allowed by the TCAB under section 37ZT(3) of the IO.

12. TCAB’s discretion to permit late filing of a notice of appeal is provided under section 37ZT of the IO, which states 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 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)

C.  GROUNDS OF REVIEW

Ground 1: Whether the refusal of the application for late filing on the basis that there is “no reasonable excuse” for the delay is Wednesbury Unreasonable and/or an error of law

13. The target of this ground of review is TCAB’s conclusion that a 7-day delay in the filing of the appeal, on the basis of a genuine and honest mistake on the deadline for filing, did not amount to a reasonable excuse and that there was accordingly no jurisdiction to extend time. 

14. The reasons underlying this ruling are found at paragraphs 2 and 3 of the Note for File, which states in the relevant part:

“2. … In the present case the deadline fell on 11 September 2014. The Appellant, however, did not file any appeal until 18 September 2014 which had therefore breached the time limit by a week. In section 5 of the Notice of Appeal/Petition he gave reason for being late as having “assumed” that the deadline was 18 September 2014 because of “human error” as he is not well educated.

3. I see no reasonable excuse on the part of the Appellant to justify the late filing of the Notice of Appeal/Petition for me to grant extension of time on a discretionary basis.  Accordingly the appeal is a nullity and I have no jurisdiction to consider the same.”

15. Ms Souza submitted that the applicant had in his Notice of Appeal sought to explain that he had assumed that the deadline was 18 September 2014 due to “human error”.  The applicant had thus attempted to explain, to the best of his ability, that the delay for filing the appeal is due to a genuine error or mistake on the date of the deadline.

16. It should be noted that the alleged full circumstances surrounding the late filing have only been set out at paragraphs 10 to 15 of the Form 86, and at paragraphs 8 and 9 of the applicant’s 2^nd Affirmation, where it is explained that:

(1) Even though the Notice of Decision on the applicant’s non-refoulement claim was handed down on 28 August 2014, the Notice was not interpreted and explained to him by his Duty Lawyer (through an Urdu interpreter) until 5 September 2014 – only 6 days from the deadline on 11 September 2014;

(2) At this meeting on 5 September 2014 the Assigned Duty Lawyer advised the applicant that there was in his opinion no (or insufficient) merits in the prospective appeal and that the Duty Lawyer Service would withdraw funding from the case.  The applicant was advised that he could proceed to appeal without legal representation, and was further advised as to the procedures on the appeal;

(3) The applicant had in the course of this meeting misunderstood the deadline for filing the appeal as 14 days from the date of the meeting, rather than from the decision itself.  Although the applicant had signed a form indicating that the deadline is 11 September 2014, he maintains nonetheless that the he had formed a clear impression from this meeting that the deadline was 14 days from the meeting.  This is consistent with the applicant’s late filing of the appeal on 18 September 2014 (before what the applicant mistakenly considered to be the deadline). 

17. The applicant went on to submit that the decision not to accept the late filing of the appeal is unreasonable in the circumstances of this case, and that a late filing of the Notice of Appeal ought to have been permitted under section 37ZT of the IO.  TCAB’s conclusion that there is “no jurisdiction” to consider the appeal on the basis that there is no reasonable excuse for the delay is also a plain error of law.

18. I do not agree with the applicant’s contentions.

19. As noted by Au J in B v Torture Claims Appeal Board [2015] 1 HKLRD 681 at paragraph 27, it is expressly provided in section 37ZT of the IO that the decision to allow or refuse a late filing of a notice of appeal is a “preliminary decision”.  Such a decision is procedural in nature and does not deal with substantively the appeal against the Director’s rejecting the applicant’s torture claim.

20. Moreover, as pointed out by Ms Chow, it should be emphasized at the outset that this court plays a supervisory role and does not adjudicate substantively on the decision of the TCAB nor is judicial review a further/alternative appeal procedure.  The task of the court in judicial review is to examine whether there has been any error of law, failure to comply with the high standards of fairness as required by the law and whether the decision in question satisfies the enhanced Wednesbury test.  In so far as the applicant in truth seeks to challenge the substantive merits of TCAB’s decision, ie that there was no justifiable excuse for the late filing of the Notice of Appeal, I agree that this court ought to be slow to interfere with such decision.

21. It seems that the crux of the applicant’s complaint is that the decision not to accept the late filing of the appeal was irrational/unreasonable and unlawful in the circumstances of this case.  In particular, as pointed out at paragraph 13 above, it is contended by the applicant that TCAB’s conclusion that a mere 7-day delay on the basis of a “genuine and honest mistake” as to the deadline through no fault of the applicant does not amount to reasonable excuse was unlawful and irrational. 

22. However, as pointed out by Ms Chow, this was not in fact TCAB’s conclusion or reason.  In TCAB’s Note for File, paragraph 2 (see paragraph 14 above), it is recorded that the reason given by the applicant for being late in filing his appeal was that he “ ‘assumed’ that the deadline was 18 September 2014 because of ‘human error’ as he is not well educated”. The reason given by TCAB for not granting extension of time to file the Notice of Appeal was that, in these circumstances, the TCAB saw no reasonable excuse on the part of the applicant to justify the late filing of the same.

23. Furthermore, it should be noted that under section 37ZT(1) of the IO, the applicant must include a statement of the reasons for failing to file the notice of appeal within the required period as provided for in section 37ZS(1), accompanied by any documentary evidence relied on in support of those reasons; and under section 37ZT(2), the TCAB must decide whether to allow the late filing of the notice of appeal only taking into account such statement of reasons stated in the application for late filing (including any accompanying documentary evidence) and any other relevant matters of fact within the knowledge of TCAB. 

24. As pointed out in paragraph 16 above, it seems that it is only in these proceedings that the applicant gives other reasons, such as there was a genuine misunderstanding (as opposed to assumption) as to the deadline and/or that there was erroneous interpretation in the meeting on 5 September 2014.  However, on the face of what is available before this court, these reasons were not the ones stated by the applicant in his Notice of Appeal and therefore were not reasons which the TCAB could take into account and/or were relevant matters of fact within the knowledge of TCAB at the material time.

25. Further, I agree with Ms Chow that there is no legal basis or authority to support the contention that there was a duty on the part of TCAB to further inquire from the applicant before deciding whether to allow the late filing of the applicant’s appeal or give the applicant the benefit of the doubt and allow him to proceed to appeal.  In Rafaqat v William Lam, HCAL 119/2012 (Judgment of Au J dated 9 May 2014), at paragraphs 47(7), 65 and 66, it was held that even high standards of fairness did not require an adjudicator to hold an oral hearing of the petition to ask more questions so as to enable the legally unrepresented applicant to establish his torture claim.

26. This court, in reviewing the lawfulness and/or reasonableness of TCAB’s decision, can only do so with reference to the materials that were before the TCAB.  In particular, having regard to the fact that the time limit was clearly stated in the last paragraph of the Director’s Notice of Decision, TCAB’s decision to refuse the granting of an extension to file the appeal/petition on the basis of the reason given by the applicant at the time cannot in my view be said to be one which no reasonable decision-maker could make.

27. For the reasons stated above, I reject this ground of review.

Ground 2: Whether on a true construction of section 37ZT of the IO TCAB can take into account the underlying merits

28. From the Form 86, it does not appear that the applicant’s case is that the underlying merits of the applicant’s torture claim can never be taken into account.

29. It is clear that there is no express limitation in the IO which precludes the TCAB from considering the underlying merits.  The issue is whether there is such an implied limitation.  On the one hand, section 37ZT(2) of the IO provides that TCAB may only take into account: (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 TCAB.  It can be argued that other matters may not be taken into account.  On the other hand, section 37ZT(3) of the IO provides that TCAB may allow the late filing of the notice of appeal where by reason of special circumstances, it would be unjust not to allow the late filing.  As to what are “special circumstances” which the TCAB can take into account, these are not defined nor provided for by the IO.  However, as fairly submitted by Ms Chow on behalf of the Director, it can readily be seen that if a torture claimant has on the face of it a very strong case to appeal/petition against the Director’s decision, it could amount to a situation where it would be unjust not to allow the late filing.

30. The applicant seems to accept this in his Form 86.  In fact, I agree with the applicant when he stated at paragraph 63 of the Form 86 that the TCAB 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.

31. I agree that 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.  For example, in deciding whether to allow the late filing of an appeal to the Court of Appeal or an extension of time to file an application for judicial review, the underlying merits is a factor which the Court does have regard to. 

32. Finally, I should point out that the taking into account of the underlying merits of the appeal does not amount to “some form of a summary appeal process” or “substantive determination of the appeal”, as it is limited to deciding the preliminary question of whether to allow the late filing of the notice of appeal.  If allowed, the matter will proceed to the substantive hearing/determination of the appeal.  Although the refusal to allow the late filing of the appeal would have a real and significant effect just as a decision to refuse to allow an appeal [see: B v Torture Claims Appeal Board, Supra, paragraphs 30 and 35(1)], the decision under section 37ZT of the IO remains a preliminary and procedural decision which does not deal substantively with the appeal [paragraph 27].

Ground 3: Whether, in the circumstances of this case, TCAB’s preliminary assessment of the applicant’s claim on the merits without granting an oral hearing to the applicant is procedurally unfair

33. In this regard, as pointed out by Ms Souza, the TCAB had made at least the following determinations relating to evidence or credibility, which were inappropriate in the context of a decision under section 37ZT of the IO (which does not permit an oral hearing), namely that:

(1) there is “no evidence … of any instigation or authorization by, or with the … acquiescence of, the national Government of Pakistan or by any person acting in the official capacity of the Government of Pakistan”;

(2) the physical assaults suffered by the applicant do not reach a minimum level of severity to amount to Torture, CIDTP or Persecution;

(3) the applicant does not presently suffer fear of attack from those who assaulted him in his home country, prior to his escape to Hong Kong;

(4) the applicant is able to live safely in Pakistan (and has “internal relocation alternatives”), on the basis of the immigration officer’s analysis of this issue in the Notice of Decision; and

(5) the applicant is not credible because of the length of time that he required to raise his non-refoulement claim in Hong Kong, and the fact that he “decided to sneak into Hong Kong, which he must know was illegal and dishonest…”. 

34. I agree with Ms Souza that the making of such material adverse findings on essential elements of the applicant’s claim, and his credibility, as a preliminary decision without an oral hearing is procedurally unfair.  It is improper to make such findings against the applicant without first putting these findings to the applicant, and allowing him an opportunity to address them.  This is evident from the authorities, such as ST v Betty Kwan [2014] 4 HKLRD 277, setting out the principles surrounding the granting of oral hearings and its importance as a facet of fairness.

35. Although there is no absolute right to an oral hearing, fairness requires that a person, in most if not all situations, be given an opportunity to make worthwhile or effective representations before a decision which he will be adversely affected by is taken against him.  This is particularly with regard to the nature of the decision-making process, the interest at stake, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations [see: ST v Betty Kwan, Ibid,at paragraphs 25 and 26].   

36. Having regard to the above principles and in the circumstances of the present case, I find that it was procedurally unfair for the TCAB to make material adverse findings on the evidence and credibility against the applicant in the context of a preliminary decision without an oral hearing under section 37ZT of the IO. 

D.  CONCLUSION

37. In the present case, the assessment of merits was an additional reason (“for the sake of completeness”) which TCAB considered “may” be one consideration for allowing the late filing of the applicant’s appeal (see: TCAB’s Note for File, paragraph 4).  In the circumstances, even upon my finding that it was procedurally unfair for the TCAB to make material adverse findings against the applicant on the merits without an oral hearing, since this court has rejected the applicant’s challenge under Ground 1, relief should still be refused as the TCAB have refused the late filing on the basis that there was no reasonable excuse for the delay.  In my view, this is not a case 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.  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 TCAB ought to allow the late filing of the applicant’s appeal.

38. For the above reasons, I dismiss the judicial review application to challenge the Decision of the TCAB.

39. 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.

40. 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.

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

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