B AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 80/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 80 OF 2014

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REASONS FOR JUDGMENT
AND
JUDGMENT ON COSTS

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A.  INTRODUCTION

1. The applicants are torture claimants.  Their torture claims were rejected by the Director of Immigration (“the Director”) by way of a decision (“the Director’s Decision”) dated 29 November 2013.

2. Under s 37ZA(1) of the Immigration Ordinance (Cap 115) (“the IO”), the applicants had 14 days from the date of the Director’s Decision to file an appeal against it with the Torture Claims Appeal Board (“the Board”).  The 14-day period thus should expire by 13 December 2013.

3. The applicants through their lawyers applied to file late the Notices of Appeal on 10 March 2014 under s 37ZT of the IO.

4. By it decision (“the Decision”) of 25 March 2014, the Board refused the applicants’ application for late filing of the Notices of Appeal.

5. The applicants seek to judicial review the Decision.

6. In the Form 86, the applicants sought leave to raise the following two grounds in support of the judicial review:

(1)  The Decision was unlawful by reason of the Board’s failure to give a reasoned decision as required under s 23(3) of Schedule 1A of the IO (“the failure to give reasons ground”); and

(2)  The Decision was unfair, in that the Board had given tacit approval or had inadvertently generated a false sense of security as to the applicants’ purported reason for late filing prior to the expiry of the appeal period, before making the Decision to the applicants’ detriment (“the unfairness ground”).

7. I have only granted leave to apply for judicial review on the failure to give reasons ground, but not the unfairness ground.

8. However, at this substantive hearing of the judicial review, Mr Dykes SC for the applicants sought also to argue the unfairness ground again notwithstanding that leave had been refused.  I will deal with his contentions to do so later in this judgment.

9. The Board has taken a neutral stance in this application and has been excused from attending the hearing.  The Director is joined as an interested party.  However, he through the Department of Justice applied on 2 September 2014 to be excused from attending the hearing as he would also take a neutral stance in the application.  The court also granted leave to excuse the Director’s attendance.

10. After the hearing, I allowed the judicial review on the failure to give reasons ground.  I quashed the Decision and ordered it to be remitted back to the Board for reconsideration.  I said I would give my reasons later.  This is what I do now.

B.  RELEVANT FACTS

11. The factual background relevant to this application can be summarised as follows as set out in the applicants’ skeleton.

The Applicants

12. The applicants are a family from Sri Lanka. They arrived in Hong Kong on 31March 2011.  The 1^st and 2^nd applicants are the parents of the 3^rd, 4^th and 5^th applicants.

13. The broad outline of their CAT claims is that between 2007 and 2011, the 1^st and 2^nd applicants operated a restaurant business when they were subjected to attacks, robbery, death threats and harassment from gangsters and persons affiliated to the ruling political party.  Unable to obtain assistance from the police or government officials, the applicants had moved around the country to escape threats to their lives, before coming to Hong Kong.

The Torture Claim and the Late Filing of Notices of Appeal

14. The applicants made a claim made on 29 January 2013 through the Duty Lawyer Service (“the DLS”).  The assigned representative was Ms Patricia Ann Ho of Daly & Associates (“the Duty Lawyer”).  The Director rejected the claim by a Notice of Decision dated 29 November 2013.

15. On 6 December 2013, one week before the expiry of the 14‑day period for filing their Notices of Appeal, the Deputy Chief Court Liaison Officer of the DLS wrote to the Board and requested an extension of time until 14 March 2014 for filing of their Notices of Appeal (“the DLS Letter”). The application was made on account of the Duty Lawyer’s maternity leave which would continue until the end of February 2014.  The DLS Letter stated, inter alia, that:

“Presently, the Duty Lawyer assigned to represent the family is on maternity leave which will continue until the end of February 2014. […]”

16. By a letter dated 9 December 2013 (“the Board’s Reply”), the Board replied in the following terms,

“ I refer to your letter of 6 December 2013.

Pursuant to section 37ZS of the Immigration Ordinance, a person who wishes to appeal against a decision referred to in section 37ZR must file with the Torture Claims Appeal Board (‘the 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). The notice of appeal must be in a form specified by the Chairperson of the Board and accompanied by a copy of the notice of decision being appealed against.

If you are minded to lodge an appeal against the decision of an immigration officer rejecting your torture claim, you should complete and sign on the ‘Notice of Appeal to the Torture Claims Appeal Board’. The completed Notice of Appeal should be submitted together with a copy of the notice of decision being appealed against and all relevant supporting documents (if any) to the following address:

…

  Please be reminded that pursuant to section 37ZT of the Immigration Ordinance, if a notice of appeal is filed after the expiry of the 14-day period, it must include an application for late filing of the notice which must include a statement of the reasons for failing to file the notice within that period and be accompanied by any documentary evidence relied on in support of the reasons given.”

17. Thus, what the Board’s Reply contained was a general “reminder” reproducing the statutory procedure for filing the Notice of Appeal within and after the 14-day period respectively under sections 37TS, 37ZR and 37ZT of the IO.

18. On 10 March 2014, the applicants filed Notices of Appeal and applied to the Board for late filing pursuant to section 37ZT of the IO (“the Late Filing Application”).

19. Annex “A” to the Notices of Appeal contained a statement of reasons for the lateness of filing, which essentially repeated the fact of the Duty Lawyer’s maternity leave mentioned in the DLS Letter:

“The Appellants seek leave to lodge this appeal out of time. The reason this application is necessary is because the Appellants’ Duty Lawyer was on maternity leave at the time when the Immigration’s determination was delivered. The Duty Lawyer resumed work on 3 March 2014 and this appeal was prepared as urgently as possible.”

20. In view of the Board’s jurisdiction over non‑refoulement claims under the Unified Screening Mechanism (“USM”), which commenced on 3 March 2014, the applicants also applied for an adjournment of their torture claim appeal via Annex “A” to the Notices of Appeal, and by pro-forma applications on 20 March 2014.

21. By a letter dated 25 March 2014, the Board rejected the Late Filing Application (ie, the Decision), stating:

“I refer to your application for late filing of the notices of appeal to appeal against the decision of an immigration officer rejecting your torture claim under section 37ZI(1)(b) of the [Ordinance].”

“Pursuant to section 37ZT of the Ordinance, the [Appeal Board] has reviewed your case and decided to refuse your application for late filing of the notices of appeal as no special circumstances have been shown to the Board.”

“As your application for late filing of the notices of appeal is not allowed, your application for an adjournment of the torture claim appeal is, accordingly, rejected.”

C.  THIS JUDICIAL REVIEW

C1.  The failure to give reasons ground

22. Under this ground, Mr Dykes’ arguments run as follows:

(1)  The Board has a duty to give reasons for the Decision.  The duty arises under s 23(3) of Schedule 1A of the IO either directly or impliedly.  Alternatively, the duty arises as a matter of common law for fairness under the circumstances of this case.

(2)  The Board has failed in this duty as the Decision is not supported by any or adequate reasons.

C1.1  Any duty to give reasons

23. Whether there is a statutory duty imposed on the Board to give reasons for a decision whether to extend time under s 37TZ of the IO is a matter of construction.  I would set out the relevant provisions first.

24. S 37ZQ provides that the function of the Board is to hear and determine (a) an appeal under s 37ZR and (b) an application for a revocation decision under s 37ZM.

25. Ss 37ZR and ZM provide respectively as follows:

“37ZR. Appeal

A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—

(a) section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);

(b) section 37ZI(1)(b) (decision rejecting a torture claim); or

(c) section 37ZL(1) (revocation decision made by an immigration officer).

37ZM. Revocation of Appeal Board’s decision to reverse decision rejecting torture claim

(1) On an application made by an immigration officer, the Appeal Board may, on a ground for a revocation decision specified in section 37ZN, revoke its decision that reversed a decision made by an immigration officer under section 37ZI(1)(b) rejecting a torture claim.

(2) Before making an application under subsection (1), an immigration officer must give the claimant written notice of the intended application, and the notice must—

(a) state the reasons for the intended application; and

(b) state that the claimant may, within 14 days after the notice is given, inform the immigration officer by written notice of the claimant’s objection to the intended application and the reasons for the objection (objection notice).

(3) If—

(a) the claimant has not given an objection notice in accordance with subsection (2)(b) and an immigration officer decides to make an application under subsection (1); or

(b) after having considered the claimant’s objection notice, an immigration officer decides to make an application under subsection (1),

the immigration officer must make the application by filing with the Appeal Board a notice of application in a form specified by the Chairperson of the Appeal Board.

  (4)  As soon as practicable after the filing of a notice of application, an immigration officer must serve on the claimant a copy of the notice of application.”

26. At the same time, s 37ZT (ie, the section under which the Decision was made) deals with an application for the late filing of a notice of appeal.  It provides as follows:

“37ZT 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 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.”

27. It is pertinent to the note that it is expressly provided in this section that the decision to allow or refuse a late filing of a notice of appeal is a “preliminary decision”.  This decision is procedural in nature and does not deal with substantively the appeals that come before the Board.

28. S 37ZU provides that Schedule 1A has effect with respect to, among others, the procedural matters of the Board.

29. S 23 of Schedule 1A provides as follows:

“23. Appeal Board’s decision

(1) On an appeal against a decision referred to in section 37ZR, the Appeal Board may confirm or reverse the decision.

(2) On an application for a revocation decision under section 37ZM, the Appeal Board may allow or refuse the application.

(3) The Appeal Board must give its decision with reasons in writing.

(4)  The Appeal Board’s decision is final.”

30. Mr Dykes contends that the word “decision” provided under s 23(3) of Schedule 1A as a matter of construction should include a decision made under s 37ZT.  This is particularly so as a s 37ZT decision is also a final one as provided for under s 23(4).  Counsel also argues that there is no reason why there should be a distinction between s 37ZT decision and the other decisions say under ss 37ZM and 37ZR for the need to give reasons, as a decision to deny the late filing of a notice of appeal would have an equally significant effect on an CAT claimant in denying his or her appeal as a decision to refuse to allow an appeal.

31. With respect, I am unable accept Mr Dykes’ submissions.

32. On a proper construction, I am of the view that the “decision” referred to under s 23(3) is a reference to the substantive decision made by the Board under ss 23(1) and (2).  This is so because:

(1)  On an objective ordinary, natural and logical reading of the relevant statutory provisions on their own and also as a whole, it is plain that the duty to give reasons set out under s 23(3) is intended to relate to the substantive decisions made by the Board after dealing with the substantive appeals.

(2)  Within s 23 itself, the beginning subsections (1) and (2) set out what the Board can do as a matter of power in making substantive decisions under ss 37ZM and 37ZR.

(3)  Then subsection (3) provides for the Board to give reasons in making its decisions and that the decisions are final as set out in subsection (4).

(4)  Viewed against the above subsections arrangement under s 23 in a logical manner and objectively in its own context, the decisions referred to in subsections (3) and (4) are plainly the same decisions referred to under subsections (1) and (2), ie, the substantive decisions made by the Board under ss 37ZR and 37ZM.

(5)  Thus, the plain and logical reading of s 23(1) to (4) shows that the duty to give reasons under subsection (3) only relates to the substantive decisions made under ss 37ZM and 37ZR.

(6)  This construction is also consistent with the overall arrangement of the statutory sections in Schedule 1A: the initial provisions of Schedule 1A (ss 1-10) provide for the filing and lodging of the notice of appeal to commence the appeal procedures.  These are then logically followed by provisions setting out how and in what way the conduct of the appeal hearing, including the admission of evidence and calling of witnesses, could be carried out as directed by the Board (see ss 10-22).  Marking the end of the appeal process, it is then ended with s 23, which provides for the relevant procedures governing the making of decisions, and s 24 for the keeping of records.  Ss 23 and 24 are thus the final provisions in the scheme dealing with the final part of the appeals relating to substantive hearing and record keeping.  Viewed as a whole as such, it supports a construction that s 23 is concerned with and related to the making of decision after the hearing of the substantive appeals.  It therefore follows that, as a matter of objective construction, ss 23(3) and (4) are intended only to refer to and deal with the making of these substantive decisions.

(7)  Furthermore, unless clearly and expressly provided for, it also cannot in my view be the intention of the legislature that, by way of s 23, it imposes a statutory and mandatory duty by way of implication on the Board to give reasons in any and all of the decisions it could make during the process, including interlocutory and procedural decisions. This would be imposing an unduly onerous and time consuming task on the Board.

33. I therefore conclude that s 23 only imposes a statutory duty on the Board to give reasons for its decisions made under ss 37ZM and 37ZR but not in relation to a s 37ZT preliminary decision.

34. That takes me to next consider whether, in the circumstances of this case, the Board should give reasons for the Decision as a matter of fairness.

35. In relation to this, I accept Mr Dykes’ submissions that fairness requires the Board to give reasons for the Decision in the present case because:

(1)  The Decision has the effect of finally disposing of the applicants’ torture claims and making them liable to be removed.  This entails real and significant implications for the applicants’ substantive right not to be subject to torture and their right to non-refoulement protection.  In other words, the Decision has a significant effect on the applicants’ torture claims.

(2)  Secondly, the lack of a right to appeal against the Decision (coupled with the above substantive effect of the Decision) is also a factor pointing towards the need for reasons to be given. Cf: Stefan v General Medical Council [1999] 1 WLR 1293 at 1298H-1300C per Lord Clyde.

36. I therefore accept that the Board has a common law duty to give reasons in relation to this particular Decision.

C1.2  The lack of reasons

37. As shown above, the letter containing the Decision only stated that the Board did not find the reasons given for the application for extension of time amounted to special circumstances.  I accept Mr Dykes’ submissions there are no reasons to explain why it was so.  It cannot be said that the reasons must be so obvious as to why the Duty Lawyer’s maternity leave did not amount to special circumstances in the present case, in particular when it is generally the position that the assignment under DLS is personal to the lawyer assigned but not the firm generally, and that that Duty Lawyer had all along been involved in the applicants’ CAT claims.

38. I therefore conclude that the Decision should be quashed for lack of reasons.  I would remit the Decision back to the Board for re‑consideration.

C2.  Unfairness ground

39. As mentioned above, I refused to grant leave to the applicant on this ground to apply for judicial review.  Mr Dykes asked this court to reconsider this ground at this substantive hearing.

40. I have doubt as to whether this court could and should entertain this in the substantive hearing, given that the court has already refused leave at the ex parte stage.  If, after refusing leave on some (but not all) of the grounds made in a Form 86, an applicant instead of appealing the said refusal of leave is permitted to argue the refused grounds again in the substantive hearing of the judicial review (relating to those grounds where leave has been granted), it would not only make the leave requirement a mockery (where when leave is refused on certain grounds), but would also be unfair to the respondent where he has filed evidence (where appropriate) and is coming to the substantive hearing only to meet the grounds where leave has been granted.  This cannot be right as a matter of general principle.

41. Mr Dykes relied on the commentary made at paragraph 53/14/16A of the White Book 2014[1] to support that he could rely on the refused ground at the substantive hearing instead of appealing the refusal.  The commentary observes as follows:

“ Partial leave – In England and Wales, a judge can grant leave in respect of some grounds and refuse leave on others. However, if the applicant had a good reason for pursuing a ground in respect of which leave has been refused, the judge hearing the substantive application might allow that ground to be argued: R (Smith) v Parole Board [2003] 1 WLR 2548. This course is preferable to an applicant being refused leave on one or more grounds appealing under RHC O 53, r3 (HK) (4) against the decision. An appeal under this rule is an appeal against an order refusing leave or granting it on terms. Arguably, an order of a judge granting leave on some grounds is still only an order granting leave and so is not a refusal of leave or a grant of leave on terms.

In case where an applicant seeks to argue a ground which in respect of which leave was refused, although such ground is a ground contained in the notice of application for leave and so within r5B(a), even though leave has been refused, it would be prudent to notify the court and any respondent or interested party of the intention to rely on that ground at the substantive hearing.” (emphasis added)

42. The authority R(Smith) v Parole Board [2003] 1 WLR 2548 (CA) referred to in the commentary should be read with some caution as to its applicability in Hong Kong.

43. In R(Smith), the claimant sought to challenge the parole board’s decision to recall him to prison by way of judicial review for lack of an oral hearing.  He intended to rely on the rights under both articles 5 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms in support of the judicial review.  The judge hearing the leave application only granted permission (ie, leave) for the claimant to rely on the ground of article 6 but refused permission in relation to the ground of article 5.  When the matter came for substantive hearing before Goldring J, the claimant applied again to the judge for permission to also rely on the article 5 ground.  Although accepting that he had a discretion to do so, the judge refused to exercise that discretion on the circumstances of the case.  On appeal, the court of appeal allowed the appeal, as it was of the view that, given that the articles 5 and 6 grounds were so closely related, they should be allowed to be run together (see paragraphs 17-19 per Woolf CJ (as he then was)).   

44. However, it must be noted that in dealing with the existence of the court’s discretion to allow a refused permission ground to be relied upon again at the substantive hearing, Goldring J and the court of appeal referred to and approved the statement by Lightman J in R(Opoku) v Principal of Southwark College [2003] 1 WLR 234 at paragraph 14 (see paragraph 12 per Woolf  CJ).  As noted by the court of appeal, Lightman J’s said observation was premised particularly on CPR r 54.15 which provides that “[t]he court’s permission is required if a claimant seeks to rely on grounds other than those for which he has been given permission to proceed”.  Lightman J was of the view that, given CPR r 54.15, there was no limitation in the Rules in England on the jurisdiction of the High Court to grant permission on a fresh application. 

45. The court of appeal at paragraphs 13-17 however disagreed with Lightman J’s approach in R(Opoku) at paragraph 16as to in what circumstances that discretion could be exercised.  It was on this basis that the court of appeal was of the view that Goldring was incorrect to follow R(Opoku)’s said approach in refusing permission again.

46. However, in Hong Kong, our O 53 does not appear to have the equivalent of CPR r 54.15.  In the premises, in Hong Kong, it may well be contended that one cannot not simply fully adopt the position in R (Smith).

47. Moreover, the second part of the first paragraph of the commentary should also be read with caution as the Court of Appeal in Hong Kong has heard appeals from partial grant of leave.  It is observed that where an applicant has been only granted partial leave, he may appeal by treating such grant as a refusal.  See: 陳紹鈞對高等法院司法常務官(unreported, CACV 209/2014, 16 December 2014, Lam VP, Yuen and Kwan JJA), in particular, see paragraphs 3-7 (citing also Clarence Chan v Commissioner of Police (2010) 13 HKCFAR 462 at paragraph 2 per Bohkary PJ).

48. Given these observations as set out above, I have some reservations as to the scope and extent of this court’s discretion, if any, to entertain a renewed application for leave at the substantive hearing of a judicial review.  However, noting that I have not heard full arguments in relation to this point (in particular where the respondents and the interested party are not present), I would refrain from expressing a final view on this.

49. But even on the commentary itself, an applicant must show “good reasons” before the court would consider exercising discretion to rehear an application for leave to rely on a refused ground. 

50. In the present case, other than submitting that the ground has merits, the applicants in the present case have not shown any good reasons as to why they should be allowed in the substantive hearing to rely on the unfairness ground, which the court has previously refused leave.

51. For this reason alone, I would not allow the unfairness ground to be relied on in this substantive hearing.

52. In any event, I am not convinced that this ground is reasonably arguable.  On a plain reading of the Board’s Reply, it is clear that the letter was only re-stating the requirements under the statute as to what might warrant an extension of time.  It could not in any objective way be read as conveying or giving any tacit approval or false sense of security to the applicants as to their anticipated application for extension of time as contended

D.  CONCLUSION

53. For all the above reasons, I would quash the Decision on the basis of the lack of reasons ground, and remit it to the Board for reconsideration. 

E.  COSTS

54. Although the Board has remained neutral to this application and has not taken any steps herein, the applicants ask for costs against the Board.

55. As accepted by Mr Dykes in his written submissions, in cases where the inferior tribunal did not contest an eventually successful judicial review but maintained a neutral stance, the usual rule is to make no order as to costs.  The principles are laid down in R (on the application of Davis (No 2) v Deputy Birmingham Coroner) [2004] 1 WLR 2739 at 2754H‑2755C, paragraph 47 per Brooke LJ as follows:

“(i) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings;

(ii) The established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event;

(iii) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case-law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application;

(iv)  There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (iii) above, so that a successful applicant, like Mr Touche, who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner (or other inferior tribunal) has gone wrong in law, and there is no other very obvious candidate available to pay his costs.”

See also: Fordham, Judicial Review (6^th edition), paragraph 18.1.12.

56. Applying the above principles, in essence, the applicants say the Board (although remaining neutral) should be asked to bear the costs in this application because the Board should reasonably have consented to an order for certiorari rather than staying neutral.  This is particularly so as the Director has also not sought to support the Decision.

57. I do not agree.  Given the relative complexity of arguments raised by the applicants as discussed above in relation to whether the Board has a duty (statutory or otherwise) to give reasons for the Decision, and that these arguments are raised for the first time (as far as this court is aware of), I do not think it is unreasonable for the Board to remain neutral to this application and seek to wait for the determination of the court for any potential guidance.  In other words, I do not find it unreasonable for the Board not to have consented to the relief sought by the applicants to justify awarding costs against the Board.

58. Mr Dykes alternatively submits that awarding costs in the rare cases (such as the present one) where there is no opposing party, the restorative costs principle should not be trumped by the fact that the decision-maker remained neutral.  Counsel says awarding costs in such circumstances would not undermine any obvious public policy principles, nor would it diminish the status of the Board as a body under the supervision of the court.

59. I am not convinced by these submissions.  As mentioned above, the situations where the court would order costs against a neutral party are governed by the above well established principles as submitted by Mr Dykes himself.  I see no reasons why these alternative submissions should somehow justify the court in departing from these principles.

60. I would therefore make no order as to costs in this application, including any costs reserved.  I further order that the applicants’ own costs be taxed in accordance with legal aid regulations.