RE MADBAR ABDUL SALAM

CACV 57/2019

[2019] HKCA 640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 57 OF 2019

(On Appeal from HCAL 454 of 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr MADBAR Abdul Salam, against the order made by Deputy High Court Judge Josiah Lam (“Judge”) on 30 January 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“Board”) given on 8 March 2018 (“Board’s Decision”), which refused the late filing of the applicant’s notice of appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 23 November 2016 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged just over 35, is a fear of being harmed, or even killed, by some people associated with the Awami League (“AL”) because he refused to persuade his relatives to withdraw murder accusations against those people.  Such alleged fear is said to arise out of the following circumstances:

(1)   There were conflicts between the Bangladesh Nationalist Party (“BNP”) and the AL.

(2)   The applicant was an active member of the BNP.

(3)   One day in 2002 or 2003, a fight between the two sides broke out. When the applicant went to the scene, he found two of his cousins dead and one severely injured (and who subsequently died from the injuries).  Some BNP people said the victims were shot by 4 AL members identified as Nuhun, Shofi, Habi and Nurul.

(4)   The police at first failed to arrest anyone.  After some pressure exerted by the BNP leaders, the police arrested Nuhun, Shofi, Habi and Nurul several months later.  However, the court granted bail to all of them.

(5)   Thereafter, one day, Nuhun and Shofi, carrying guns, went to the applicant’s house.  They pointed their guns at the applicant and threatened to kill him unless he and his BNP brothers would drop the murder charges against them.  After the applicant told them that he was not able to persuade the others to do so, Nuhun and Shofi then left.

(6)   The applicant did not report the incident to the police because he thought the police would not listen to him.

(7)   The applicant later learnt that Nuhun and Shofi had gone to find his cousin Amir.  They took Amir away but later released him.

(8)   The applicant's uncle took his family to live elsewhere.  To avoid his enemies, the applicant also moved to Chittagong and then Dhaka before he left the country for Dubai in 2005, though he heard that the AL people were still coming to his house to look for him.

(9)   The murder cases were not withdrawn but were put on hold due to the influence of the AL.  

(10)   The applicant returned to Bangladesh from Dubai in early 2013.  He settled back at his home village after some months.

(11)   In mid 2013, Nuhun, Shofi and Habi came to demand the applicant to pay them 20,000 Bangladesh takas in 2 months’ time.  They threatened to kidnap the applicant if he did not meet their demand.  The applicant understood they actually wanted him to persuade his relatives to drop the old murder charges.

(12)   The applicant again did not complain to the police as he thought his enemies were powerful.  He was worried and left his village to live in other places.  Finally, he left Bangladesh for China on 9 February 2014, leaving behind his wife and 5 children.

(13)   While in China, the applicant learned from his wife that the AL people continued to look for him.  He also heard that 2 of his cousins had been falsely accused of criminal damage and imprisoned in Bangladesh.

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant sneaked into Hong Kong from China illegally on 1 June 2015.  He surrendered to the Immigration Department on 18 June 2015 and made the NRF claim on 15 October 2015.  He completed and submitted his Non-refoulement Claim Form on 30 July 2016.

4.  On 11 April 2016, the applicant was arrested for taking employment while being a person who remains in Hong Kong without the authority of the Director after having landed unlawfully.  He was convicted of, and sentenced to 15 months’ imprisonment (which was served at the Tong Fuk Correctional Institution) for, such offence on 12 May 2016.

Director’s Decision

5.  In processing the NRF Claim, on 24 August 2016 and 7 October 2016, the Director’s representative conducted screening interviews with the applicant who received legal assistance from the Duty Lawyer Service (“DLS”). 

6.  The Director’s Decision covered all applicable grounds: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].  The Director found no substantial grounds for believing that there would be any real risk of the applicant being killed or harmed upon his return to Pakistan.

(1)   First, the intensity and frequency of past ill-treatment suffered by the applicant who was not injured at all was assessed to be low and taken to be indicative of an unlikely future risk of harm even if the applicant be returned to Pakistan.  Had the AL people really intended to harme the applicant, they would have found opportunities to do so, especially when they carried guns in the 1^st incident described by the applicant.  Also, on his own account, nothing eventful happened to the applicant during his stays in Chittagong and Mugda, Dhaka after the 1^st incident and Tejgaon, Dhaka, Beparybair, Charpalong and Mulfutgani after the 2^nd incident, suggesting that the applicant’s enemies were not as powerful or influential as he asserted.

(2)   There is no evidence that the AL people who threatened or assaulted the applicant were government officials or acting in any official capacity or that the AL as a national party had ever agreed, or would agree, to lend its political power/influence to local leaders like the AL people in question to use against the applicant for the criminal objective of pressurising the applicant to persuade his relatives to drop the murder charges.

(3)   Second, the availability of state protection would negate or lower the level of risk (if any).  The applicant of his own volition did not seek help from the Bangladeshi police which was therefore unaware of the matter because the applicant assumed that the police would be unable or unwilling to offer him protection.  There is objective country of origin information (COI) showing that reforms in the Pakistani police have taken place and are ongoing and that the Pakistani government has taken practical steps to monitor the conduct of the police and improve their effectiveness.

(4)   Third, reasonable internal relocation alternatives are available to an able-bodied young adult with local and overseas working experience like the applicant.  He had in fact lived away from his own village without being traced by the AL people for protracted periods.

Appeal to Board and Board’s Decision

7.  According to [25] of the Form CALL-1 dated 30 January 2019, [2019] HKCFI 202 (“Form CALL-1”), the Director’s Decision (dated 23 November 2016) was delivered to the applicant by mail care of the DLS, his legal representative on the record.

8.  By virtue of s 37ZV(1)(c) and (3) of the Immigration Ordinance (“Ordinance”), it was presumed until the contrary is proved that the Director’s Decision was served on and received by the applicant on the 2^nd working day after it was posted to the DLS.

9.  Pursuant to s 37ZS(1), the applicant could appeal against the Director’s rejection of the NRF Claim to the Board within 14 days after notice there was given to the applicant, which expired on 9 December 2016.

10.  However, the applicant’s notice of appeal was dated 11 January 2017 and did not reach the Board until 18 January 2017.  In other words, his appeal to the Board was late for about 40 days.

11.  In such situation, s 37ZT(1) requires the notice of appeal to include an application for late filing of the notice, which must include a statement of the reasons for failing to file the notice within time and be accompanied by any documentary evidence relied on in support of the reasons.  Section 5 of the form for the notice of appeal to the Board contains such an application. 

12.  The applicant did not adduce any documentary evidence but explained the late filing of his notice of appeal as follows:

“I received the Notice of Decision in late November, 2016. Since I have been in prison since May 2016 and I do not know English, I had to wait until recently when an inmate was able to assist me in understanding the Decision and was able to assist me in preparing these grounds of appeal/petition. I hope you will be sympathetic to my predicament.”

13.  Section 37ZT 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)

14.  Apart from setting out the provisions of s 37ZT, the Board directed itself (at [12]) on the following 3-stage approach alluded to in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 (3 March 2016) at [14]:

(1)   The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules.  If the breach is serious or significant, the decision maker then considers the second and third stages.

(2)   The second stage is to consider why the failure occurred.  If there is a serious or significant breach and no good reason was given for the breach, then the decision maker moves to the third stage.

(3)   The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. In considering all the circumstances of the case, the decision maker also takes into account (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice and directions and court orders.

15.  The Board’s reasons for refusing the applicant’s application for late filing of his notice of appeal can be found at [13], [15], [18]-[21] of the Board’s Decision as follows:

“13. The principles that litigation must be conducted efficiently and at proportionate cost, and that compliance with rules and practice directions must be enforced are legal principles with universal application. These principles are as important here in Hong Kong as they are in the United Kingdom.

…

15. All the matters given in section 5 of the Notice of Appeal by the Appellant have been taken into consideration, as well as other relevant matters of fact within the knowledge of the Board.

…

18. Since the Notice of Decision was delivered to the Appellant care of the Duty Lawyer Office, the Duty Lawyer would have been under a duty to explain the contents of the document to the Appellant. The Duty Lawyer would also have been under a duty to explain the procedure of lodging an appeal against the Notice of Decision.

19. The Appellant’s explanation for late filing of his application is that he required an inmate to prepare his Appeal but the records state that he was represented by the Duty Lawyer, with the duties described above.

20. The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in SSHD v Begum. Those principles are that there is a need for this type of application to be conducted efficiently and at proportionate cost.

21.   The Board does not accept that requiring an inmate in the prison, while represented by the Duty Lawyer, is a sufficient answer to the late filing of the Appellant’s appeal/petition.  The delay in submitting the Appeal is a month over the statutory time limit for submission and the Board is not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.”

Application for leave for judicial review and Judge’s Decision

16.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 454/2018 on 20 March 2018 (“Form 86”), the applicant sought leave to apply for judicial review to quash the Board’s Decision.  The Form 86 itself did not state any grounds on which relief was sought but, as summarised by the Judge at [29] of the Form CALL-1, by an supporting affirmation filed on the same date, the applicant provided the following grounds for his intended challenge against the Board’s Decision:

(1)   failing to hold an oral hearing and to allow the applicant an opportunity to put forward his case;

(2)   failing to consider the merit of the applicant’s case;

(3)   failing to inform the applicant that he had the right to complain; and

(4)   failing to consider the fact that the applicant was not legally represented after the Director’s Decision and thus had insufficient knowledge of the legal requirement leading to the late filing of his appeal.

17.  On 23 July 2018, the Judge conducted an oral hearing of the application, which the applicant attended in person and was provided with assistance from a Bengali interpreter. He gave a different explanation for the delay.  The Judge’s reasons for refusing leave can be found at [33]-[47] of the Form CALL-1 as follows:

“Discussion

33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’ (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45). Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” (CACV 219/2018 [2018] HKCA 570, para 14(1)).

Late filing of appeal to the Board

35. s. 37ZS (1) of the Immigration Ordinance states: –

A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of appeal within 14 days after notice of the decision is given to the person unless late filing of the notice is allowed by the Board under section 37ZT(3).

36. s. 37ZT of the same ordinance provides: –

(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.

37.   In court, the Applicant said he managed to send out the first notice of appeal via the welfare officer in the prison within the stipulated 14-day period.  However, an officer of the Immigration Department later went to the prison to ask him why he had not filed an appeal.  He was then asked to fill and submit a new notice of appeal within three days.  He therefore filed the current NOA, which was dated 11 January 2017.

38.   What the Applicant said in court was not in his affirmation or Form 86 at all.  It sounds extremely odd that an officer of the Immigration Department would go to the prison to ask the Applicant why he had not filed an appeal and then asked him to submit a new NOA within three days.  That is incredible and also inconsistent with what the Applicant stated in the NOA received by the Board.  There, the Applicant said he received the Director's decision but he did not know English so he had to wait for an inmate to assist him to understand the Director's decision and to prepare for the appeal.

39.   I do not accept the Applicant's changed explanation for his late filing of appeal to the Board.  His only explanation was what he told the Board in the only NOA he had filed, which was dated 11 January 2017.  The Adjudicator had duly considered his explanation and did not find it justified.

40.   The Applicant complained the Adjudicator failed to consider the fact that he was not legally represented after the Director's decision and thus had insufficient knowledge of the legal requirement, leading to the lateness of his appeal filing.

41.   The Adjudicator was certainly aware the Applicant was only represented up to the Director's decision.  He assumed the duty lawyer had explained the Director's decision and the appeal procedure to the Applicant.  That assumption was reasonable.  There was no evidence to suggest otherwise.  The Applicant had delayed his appeal application.  He failed to show he really need to wait for an inmate for assistance.

42.   Even if the Applicant would like to enlist an inmate’s help after DLS had stopped acting for him, he should not have waited that long. The date of his NOA was 11 January 2017 while the deadline for filing was 9 December 2016.  The NOA reached the Board only on 18 January 2017.  The delay was in any event more than a month.

43.   In a case of late filing of appeal, the Board must decide as a preliminary decision without a hearing whether to allow the late filing or not.  The Board may only take account of the statement of reasons stated in the NOA, any accompanying documentary evidence relied on in support of those reasons and any other relevant matters of fact within the knowledge of the Adjudicator.  The Adjudicator need not hold any oral hearing for a preliminary decision on whether to allow the Applicant's late filing or not.  He also need not and should not consider the merits of the Applicant's intended appeal.  The Adjudicator should only focus on the reasons stated in the NOA, any accompanying documentary evidence relied on in support of those reasons and any other relevant matters of fact within his knowledge.

44.   The Adjudicator was aware he had to consider the legal requirements set down by case law (The Secretary of State for the Home Department v Begum (2016) ECWA Civ 122 (03 March 2016)). He had to decide if the lateness was serious or significant; whether the Applicant could give a good reason for the breach; and to evaluate all the circumstances of the case.

45.   The Adjudicator had considered the reason given by the Applicant and all the circumstances.  He found the Applicant was unreasonably late in his filing of appeal for more than a month.  The Adjudicator considered there was a need to enforce compliance of the rules set out in the Immigration Ordinance so that proceedings could be conducted efficiently.  He found there were no special substances that would make it unjust to reject the Applicant’s late filing of appeal. He thus dismissed the Applicant's late appeal.  The Adjudicator’s decision was not Wednesbury unreasonable.

46.   I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.  The Adjudicator had proper basis for his decision.  He made no errors of law and there was no procedural unfairness.  The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

47.   The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought review. I therefore refuse to grant him leave for judicial review.” (emphasis added)

Appeal to Court of Appeal and grounds of appeal

18.  By a notice of appeal filed herein on 8 November 2018, the applicant appealed against the refusal of leave for judicial review on grounds which appear to this court somewhat discrepant from the facts, or the issue, of his case, which is whether his late notice of appeal to the Board should have been accepted:

“1. The judge has wrongly exercised his decision in coming to the conclusion that the Adjudicator at the Torture Claims Appeal Board has not erred in his decision.

2. First of all, the Adjudicator decided that I am not a credible witness due to the discrepancies found in various statements and records of interviews, protection claims from in 18 June 2015 my non-refoulement protection claim from in 15 October 2015, on 23 November 2016 rejected by a non-refoulement Claim, On ater November 2016 Director refused my clam. 18 January 2017 Board for Appeal, and 11 January 2017 as not well Adjudicator did not accept the Appeal because had any justification for later filing of Appeal. On 8^th March 2018 the Adjudicator dismissed my non-refoulement protection claim.

3. I have already explained to the authorities about the lack of clarity and transparency in the bundl . The judge Josiah Lam dismissed my claims because “it was then transpired that his confusion was more to do with his own memory and his inability to answer questions properly, He was not actually confused about the procedure and the interpreter had gone through the bundle with him and he understood it’s cont.” This is an overstatement as the bundle was only interpreted to me whenever the Adjudicator found is necessary to be referred to certain paragraphs or document. As much as I understood the contents which were interpreted to me. I had no means of finding out what the rest was. The fact that there was an interpreter to be arranged to me during the course of the oral hearing is not a fair indication that the process his been procedurally unfair. The bundle was never read to me prior to the oral hearing as I was only asked to pick it up with limited assistance (as the Duty Lawyers has refused to provide further assistance) and also the fact that I speak little English but can barely read English. It is unfir and detrimental to me to expect me to prepared for the hearing.

4. As I have demonstrated the fact that I have been relying heavily on interpreter, I will never have any means of finding out if the interpreters have been interpreting my words correctly and further whether the officers have been nothing down the words correctly. As much as I wish to rely on the translation, it has proven so far in the case that my word have always been wrongly interpreted. The judge herself has witnessed the confirmation that I had no complaint against the duty lawyer. A lot of the words were simply lost in translations and as such the Adjudicator has wrongly exercised his case management power in deciding that I lack credibility. I don’t wish to clarify further because I did not have anyone to seek legal advice from and also because I have reached a point of frustration at that point in having to explain myself for the things that I never said.”

19.  His written submission dated 24 April 2019 reiterated the factual allegations in support of the NRF Claim. 

20.  The applicant appeared in person at the hearing of the appeal on 1 April 2019.  He said he was late in filing his appeal to the Board because he was in prison.  He had nothing else to add to his grounds of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

21.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

22.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

23.  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.

24.  Where a notice of appeal 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 the length of the delay, the explanation for the delay and “any other relevant matters of fact within the knowledge of the Board”.

25.  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 [12] 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. 

26.  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.

27.  The Board stated at [9], [15] and [20] of its Decision that it had considered/evaluated all the circumstances of the case.  However, we can find no reference in the Board’s Decision to the merits or otherwise of the NRF Claim.  As for the Judge, he expressly took the view that merits need not or should not be considered (see Form CALL-1 at [43]).

28.  In our opinion, it is arguable that it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious and that the Board should have, under s 37ZT(2)(b) of the Ordinance, looked at the merits or otherwise 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] and Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019, [23]-[26].

29.  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.

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

31.  As stated in paragraph 22 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. In his case, we note that the 2^nd ground stated in the applicant’s affirmation in support of the Form 86 did take the point that the Board failed to the merits of his appeal, which the Judge wrongly rejected.

Disposition

32.  We would therefore allow the appeal and grant leave to the applicant to apply for judicial review. 

33.  In accordance with Order 53 rule 5 of the Rules of the High Court (Cap 4A), the applicant should file and serve an originating summons within 14 days from the date of this judgment.  The originating summons should set out the ground that the Board had failed to consider the substance of the applicant’s non-refoulement claim, which is a relevant matter of fact within the Board’s knowledge within the meaning of s 37ZT(2)(b) of the Ordinance.