ALI FAYZAN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 787/2018

[2019] HKCFI 2545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 787 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

1.   extension of time be granted to the Applicant to file his Notice of Application for Leave to Apply for Judicial Review (“Form 86”); and

2.   leave be granted to the applicant to apply for judicial review of the Torture Claims Appeal Board (“the Board”)’s decision dated 8 September 2017 on the grounds that the Board failed to take into consideration of all the circumstances of the case in its refusal to allow the late filing of the Applicant’s notice of appeal, or that it was not Wednesbury reasonable not to allow his late filing.

It is further directed that:

3.   the Applicant should file the originating summons within 14 days of this order and serve on both the Board as the first respondent and the Director of Immigration as the second respondent.

Observations for the Applicant:

1.  The Applicant is a national of Pakistan who raised a non-refoulement claim by a written representation with the Immigration Department, but when he failed to return a completed non-refoulement claim form within the prescribed time, his claim was treated as withdrawn, and when his request to re-open his claim was rejected by the Director of Immigration (“the Director”), and his subsequent appeal to the Torture Claims Appeal Board (“the Board”) was also dismissed, he lodged his application for leave to apply for judicial review of the Board’s decision which is now before me in these proceedings.

2.  Part VIIC of the Immigration Ordinance, Cap 115 has made provisions and regulations for the making and assessment of a claim for non-refoulement protection in Hong Kong on the ground of a torture risk, starting with section 37X(1) which provides for how such a claim may be made to the Director as follows:

“ A person who claims non-refoulement protection in Hong Kong on the ground of a torture risk must signify to an immigration officer in writing the person’s intention to seek non-refoulement protection.”

3.  Having signified such a claim to the director, the claimant must then submit a torture claim form as provided and specified under section 37Y as follows:

“ (1) A claimant must, on written request by an immigration officer—

(a) complete a torture claim form, and the completed form must—

(i) state the grounds of the claim and the facts supporting the claim;and

(ii) include such other information as is required by the form; and

(b) return the torture claim form so completed to an immigration officerat an address specified in the form, together with all documents supporting the claim that are readily available to the claimant when the form is returned.

(2) The claimant must return the completed torture claim form in accordancewith subsection (1)(b)—

(a) within the period of 28 days after a written request under subsection (1) is given to the claimant; or

(b) within any further period that an immigration officer allows under subsection (3).

(3) An immigration officer may—

(a) on an application made by a claimant in writing before the expiry of a period for returning a completed torture claim form in respect of the claimant’s torture claim; and

(b) on being satisfied that, by reason of special circumstances, it would be unjust not to allow a further period for the claimant to return the completed form,

allow a further period that the immigration officer considers appropriate for the claimant to return the completed form.

(4)   The torture claim form is to be in a form specified by the Director.”

4.  If a claimant fails to return a completed torture claim form as required above, it is deemed as withdrawn but the claimant may subsequently request to re-open the claim undersection 37ZG as follows:

“ (1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2) An immigration officer must give the person who made the claim a written notice stating that—

(a) the torture claim is treated as withdrawn under subsection (1); and

(b) the person may apply to re-open the claim under subsection (3).

(3) A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required under section 37Y(2).

(4) If an immigration officer decides to re-open a person’s torture claim under subsection (3), the immigration officer must, by written notice, inform the person—

(a) of the decision; and

(b) that the person is required to return a completed torture claim form in respect of the claim to an immigration officer at an address specified in the form within 14 days after the notice is given.

(5) If an immigration officer decides not to re-open the person’s torture claim,the immigration officer must, by written notice, inform the person of—

(a) the decision;

(b) the reasons for the decision; and

(c) the person’s right under section37ZR to appeal against the decision.

(6) Ifa torture claim is re-opened under subsection (3), subject to subsections (7) and (8), processing of the claim is to continue in accordance with this Part as if the claim had not been withdrawn.

(7) Section 37Y(2) applies to the torture claim as if for paragraph (a) of that section there were substituted—

‘ (a) within the period of 14 days after the notice under section 37ZG(4) is given to the claimant; or’.

(8) If a completed torture claim form in respect of the torture claim is not returned in accordance with section 37Y(2) as read with subsection (7), the claim is to be treated as withdrawn under subsection (1)—

(a) on the expiry of the 14-day period; or

(b)   if a further period is allowed under section 37Y(3), on the expiry of the further period.”

5.  Since the commencement of the Unified Screening Mechanism (“USM”) in March 2014 when a torture claim is to be taken as a non-refoulement claim, these provisions similarly apply to the completion and return by the claimant of the non-refoulement claim form (“NCF”) to the immigration officer.  It is with these provisions in mind that I turn to consider the application now before me, starting with the following chronology of the Applicant’s non-refoulement claim to the Director’s refusal to re-open his claim:

6 January 2014  :	the Director received the Applicant’s written signification of his claim dated 31 December 2013.
15 July 2016   :	a “Notice to Person Making a Non-refoulement Claim” together with a blank NCF and a notice requiring it to be completed and returned to the immigration officer within 28days or by 12 August 2016 were served on the Applicant who was then being detained at Castle Peak Bay Immigration Centre (“CIC”).
12 August 2016  :	DLS by letter informed the Director of no instructions to act for the Applicant.
15 August 2016  :	an immigration officer by written notice informed the Applicant that his claim was treated as withdrawn on 13 August 2016 due to his failure to return his completed NCF within the required time.
8 May 2017   :	the Applicant by letter requested the immigration officer to re‑open his claim.
11 May 2017   :	the immigration officer by letter required the Applicant to provide detailed reasons why he was unable to return his completed NCF which may be due to circumstances beyond his control with any documentary proofs.
17 May 2017   :	the Applicant by letter provided his reasons to the immigration officer.
22 May 2017   :	the Director by written notice informed the Applicant, then a prisoner held in Tai Lam Correctional Institution, of the decision not to re-open his claim.

6.  In the notice the Director gave the following explanation for refusing to re-open the Applicant’s claim:

“ Based on your letter of 17 May 2017 and all the information you provided, and having considered all the circumstances of the case, you were unable togive your justifications to satisfy us that your failure to return your completed NCF in relation to re-opening of your non-refoulement claim which are due to circumstances beyond your control and no documentary proofs have been provided as requested by our letter of 11 May 2017.”

7.  I pause here to note that in finding that the Applicant was unable to give his justification to satisfy the Director that his failure to return his NCF in relation to re-openinghis non-refoulement claim was due to circumstances beyond his control, the Director did not set out what exactly were those justifications or explanations put forward by the Applicant in order that the Board may consider their merits in the event of any appeal being brought by the Applicant.

8.  Indeed on 14 June 2017 the Applicant from CIC lodged his appeal to the Board against the Director’s decision under section 37ZS, but as its subsection (1) requires that the notice of appeal must be filed with 14 days after notice of the decision is given unless late filing is allowed by the Board, and as the last day of the 14-day period for the Applicant to do so fell on 7 June 2017, he was therefore seven days late with his application, and for late filing of the notice of appeal, section 37ZT provides as follows:

“ (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, theBoard 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.”  

9.  In his Notice of Appeal the Applicant provided the following statement of reasons for his failure to file his notice of appeal within time:

“ I am deeply sorry for filing this appeal late. Because I received this letter the actual date of the expiry i.e. 5 June 2017 and I had to take time to write this letter.”

10.  Perhaps more significantly, he did, I believe for the first time, also provide the basis of his non-refoulement claim when he set out in Section 2 of his notice the grounds of his appeal as follows:

“ I appeal against the decision of the immigration officer to reject my case. I can not go back to my country Pakistan due to the violence I committed the accident. I was involved killing someone while driving. The family and friends of the victim I killed are still searching for me my family told me they visited them many times just looking for me and also they claim that they must kill me until that is done they will never stop searching for me until they kill me. I also have relevant documents I can provide for my support claim and any supporting document as soon as I bail out from the detention. Please sir consider my request so as to bring any relevant document as soon as possible when am out of detention.”

11.  In Section 1 of the Notice for his personal information, it is also noted that the Applicant was then still being detained at CIC and did not have any contact telephone.

12.  On 8 September 2017 pursuant to section 37ZT(2), the Board without a hearing made a preliminary decision refusing to extend time for the Applicant’s late filing of his notice of appeal upon finding his delay of one week was a serious and significant failure to comply with the rules, that his reason for his late filing was not acceptable, and that it was fair and just to refuse his application.

13.  On 4 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

 (1) that the Director failed to appreciate or give the proper importance or weight to the presence of state acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting his non-refoulement claim;

 (2) that the Director failed to take into account the argument that the Applicant was tortured at the behest of and in full collusion of the police and state law enforcement agencies for which the state should be rendered liable to the Applicant before reaching his decision;

 (3) that the Director failed to consider or give sufficient weight to relevant COI which supported the Applicant’s claim that the police in Pakistan would not be able to protect its citizens;

 (4) that the Director had shown an unfair attitude by relying only on those COI which suited his pre-conceived conclusion thereby rendering his decision void;

 (5) that the Director failed to recognize that corruptions and incompetency of the administration in Pakistan was still a very serious problem which supported the Applicant’s claim;

 (6) that the Director failed to attain the high standard of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law; and

 (7) hat the adjudicator failed to make sufficient enquiry before finalizing his determination and failed to give the Applicant sufficient chance to arrange relevant evidence for his non-refoulement claim as well as his appeal.   

14.  The Applicant was however by then already late with his Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

15.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 8 December 2017, he was therefore almost five months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

16.  In the Applicant’s case, a delay of almost five months must be considered as substantial, for which he did not provide any explanation in his supporting affirmation, nor did he attend the hearing of his application to do so.  According to the Director, it seems that the Applicant has since about mid-2018 been released from CIC and has moved to an address in Kowloon to which the Court had sent the notice of the hearing.  It is however as noted above that at the time when he filed his Form 86, he was still being detained at CIC.  Whether that was a contributing factor to his delay, he did not attend the hearing to explain.  As such I do not accept that he has provided any good reason for his delay.

17.  I next turn to consider the merits, if any, of his intended application, which is a significant factor in determining whether the Court should exercise its discretion to grant an extension of time for his application by delving deeper into the merits of the substantive challenge in order to consider what weight should be given to this factor when weighed against other factors such as the substantial delay without explanation in the present case:see AW, supra [36].

18.  Most of the proposed grounds put forward by the Applicant are just broad and vague assertions without any specifics or elaborations, in particular the first six grounds which appear to have been just copied from another person’s case and are all wholly irrelevant to the Applicant’s claim. As such I do not find any merits in any of them.  The last remaining ground (7) does however require more careful examination and scrutiny.

19.  The complaint under Ground (7) is that the adjudicator failed to make sufficient enquiry before reaching his final determination.  Although similarly as in his other grounds, the Applicant did not appear to have provided any relevant particulars or useful elaboration, a close examination of the Board’s decision in refusing to extend time for the late filing of his notice of appeal reveals that this complaint of the Applicant is not without merit.

20.  In its decision the Board first set out the provisions of section 37ZT, and then directed itself on following the three-stage approach set out in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 (3 March 2016) as follows:

 (i) 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 stage.

 (ii) 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.

(iii) 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 directions and court orders.

21.  The Board then gave the following reasons for refusing the Applicant’s application for late filing of his notice of appeal:

“ 15. The Appellant’s reason for late filing was that he had to take time to write the Notice of appeal after he received the Notice of Decision from the Director, I noted that an appeal form was provided together with the Director’s Notice of Decision when it was sent to the Appellant on 22 May 2017, to Tai Lam Correctional Institution in Tai Lam Chung, in the New Territories in Hong Kong, where he was detained. The final paragraph in the Director’s Notice of Decision reads ‘If you are aggrieved by the foregoing decision, you may lodge an appeal/petition. Your appeal/petition will be determined by the Torture Claims Appeal Board/Adjudicator(s) delegated with the authority to handle such appeals/petitions. You must file your notice of appeal/petition in the enclosed form accompanied by a copy of this notice within 14 days from the date of this notice. The address for filing the notice of appeal/petition is that of the Torture Claims Appeal Board/Adjudicator(s) at Rooms 3007–10, 30/F, Immigration Tower, 7 Gloucester Road, Wan Chai,Hong Kong.’ The Director’s Notice of Decision served on the Appellant had expressly stated that the Appellant must file his notice of appeal/petition within 14 days of the date of the Notice of Decision, and an appeal form accompanying the Notice of Decision was provided to the Appellant, and the address for filing the appeal/petition was also clearly stated in the Director’s Notice of Decision. There was ample time for the Appellant to fill in the Notice of Appeal as he had 14 days from the date of the Director’s Notice of Decision to do so.

16. Following the principles and methodology in the United Kingdom Begum case, I found, firstly, that a delay of one week in filing an appeal against the Notice of Decision is a serious and significant failure to comply with the rules.

17. Secondly,I do not find the Appellant’s reason for late filing acceptable to explain why he filed his Notice of Appeal one week late. In all the circumstances, the Appellant would have no good reason for the breach.

18. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

19. There were no other matters known to me or revealed by the factual basis of the Appellant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of appeal.”  

22.  As noted above, section 37ZT(3) clearly 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.

23.   Here its finding that a delay of one week in filing an appeal was “a serious and significant failure to comply with the rules” appears to me a preconceived position of the Board rather than as applied to the Applicant’s case, as it had so stated earlier in paragraph 6 of its decision:

“ Given the strict regime governing late filing of the Notice of Appeal, it matters not whether the delay here is one week or longer, the Appellant must be able to show the special circumstances which would make it unjust to refuse his application for late filing of the Notice of Appeal.”

24.  It also appears to me that the Board found that the Applicant had no good reason for the breach simply because he had had 14 days to “fill in the Notice of Appeal” which it considered as ample time, when it well knew that the Applicant was then in prison when he received the Director’s Notice of Decision, that one may reasonably presume, as pointed out by the Court of Appeal in Re Qasim Ali [2019] HKCA 430, that an applicant in such a situation might or would have to go through more hurdles if not difficulties in arranging his affairs, and that the Board did not appear to have made any enquiry as to whether in the circumstances any incoming mail for the Applicant as an inmate would have to go through some measures or inspections conducted by the institution before reaching him and resulted in some inevitable delay that the Applicant might in fact not have as many as 14 days to “fill in his Notice of Appeal”.

25.  In Qasim Ali, where there was a delay of eight days with the filing of the notice of appeal by an applicant who was then similarly detained in prison, and of which the Board also found to be a serious and significant failure to comply with the rules and that the applicant would have no good reason for the breach, the Court of Appeal held that it would be reasonably arguable that such findings were unreasonable in the Wednesbury sense, as L Wong J stated in paragraph 22 of her judgment for the Court:

“ We are surprised by the findings by the Board that a delay of 8 days was a ‘serious and significant failure to comply with the rules’ and that the applicant would have no good reason for the breach. In our view, it is reasonably arguable that such findings are unreasonable in the Wednesbury sense in light of the circumstances of this case:

(1) A delay of 8 days cannot, on any view, be regarded as serious or significant.

(2) In this case, the service of the decision under appeal on the applicant took 6 days.

(3) The applicant was, to the Board’s knowledge, in prison when he received the director’s Decision. One can reasonably presume that an applicant in such a situation might or would have to go through more hurdles (if not difficulties) in arranging his affairs. That the applicant could eventually lodge his appeal to the Board in August 2017 (Call‑1 Form [42]) is therefore neither here nor there.

(4)   While the applicant had not provided a reason for his delay in section 5 of the appeal form, he had rectified the omission by his said letter dated 23 August 2017 to the Board before the Board exercised its discretion.  The explanation was that he was illiterate and could not find anyone educated to help him.  The fact that such circumstance might affect a great number of non-refoulement claimants does not render it an untrue or unreasonable explanation for the late appeal.  In this regard, we note that the Board did not disbelieve the explanation.  Rather, the Board found the given reason ‘unacceptable’ ([19] of the Board’s Decision).  We have difficulty with such assessment.  The applicant’s inability to read, especially, English would mean that he would not appreciate the notes about the time limit for appeal until he could locate someone who could interpret and explain them to him.”

26.  Furthermore, despite having directed itself to undertake the three-stage enquiry alluded to in the Begum case that even where there is a serious or significant breach of the 14-day rule and for which no good reason is given, that the Board should move to evaluate all the circumstances of the case that it knows of, it seems to me reasonably arguable that the Board in the present case did not do so, despite the fact that firstly, as noted above in [7] that the Director did not set out the Applicant’s explanations for his delay in filing his notice of appeal before rejecting them in his decision, and secondly, when the Applicant didset out the basis of his non-refoulement claim in his notice of appeal which must in my view form part of the circumstances of the case that the Board knew of and should have taken into consideration.

27.  In allowing the appeal and in granting leave to apply for judicial review, the Court of Appeal in Qasim Ali held that the Board must evaluate all the circumstances of the case in deciding whether to exercise its discretion to extend time for the late filing of the notice of appeal as follows:

“ 24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be ‘unjust’ not to do so by reason of ‘special circumstances’: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call‑1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16] – [20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

28.  In the premises and for the reasons given, I am of the view that it is reasonably arguable that the Board failed to take into consideration of all the circumstances of the case in its refusal to allow the late filing of the Applicant’s notice of appeal, or that it was not Wednesbury reasonable not to allow his late filing. Accordingly I would extend time for the Applicant to file his Form 86, and grant leave to him to apply for judicial review of the Board’s decision on these grounds.

29.  In accordance with Order 53, rule 5 of the Rules of the High Court, Cap 4A, I also direct that the Applicant should file the originating summons within 14 days of this order and serve on both the Board as the first respondent and the Director as the second respondent. 

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