NOOR ALAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 580/2018

[2019] HKCFI 2599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 580 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 7 July 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1. The Applicant is a 30-year-old national of Pakistan who on 13 March 2014 signifiedto the Immigration Department in writing of his intention to seek non-refoulement protection in Hong Kong.

2. On 15 April 2014 the Immigration Department informed the Applicant in writing that his claim for non-refoulement protection would be dealt with under the Unified Screening Mechanism (“USM”) when he would be contacted in due course to attend a briefing session at the Department during which the screening process would be explained to him and that a non-refoulement or supplementary claim form be provided to him for completion, as well as information as to the service of publicly funded legal assistance for the process.

3. Before such briefing session was arranged for him, the Applicant on 14 March 2016 wrote to the Department to withdraw his non-refoulement claim as he stated that he wanted to go back to Pakistan as it was safe for him to do so, which was accepted by the Department when no further action was taken with his case.  I should pause here to note that therefore no particulars have been provided by the Applicant in the form of a non-refoulement or supplementary claim form as to whatever cause or reason that caused him to leave Pakistan in the first place, and that whatever it might be, it was his own case that it was then safe for him to return to his home country.

4. On 8 August 2016 the Applicant however wrote to the Department requesting to re-open his case as he claimed to still have problems in Pakistan.

5. On 25 August 2016 the Department in writing requested the Applicant to provide sufficient information and evidence for consideration of his request by 8 September 2016 pursuant to section 37ZE(2) of the Immigration Ordinance, Cap 115 which provides that:

“ Subject to section 37ZF(3), a torture claim that has been 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—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b)   by reason of special circumstances, it would be unjust not to re-open the claim.”

6. As the Applicant did not respond to the Department’s request nor provide any such evidence in writing at all, by a Notice of Decision dated 3 October 2016 the Director of Immigration (“the Director”) refused his request upon receiving no evidence of change of circumstances since the withdrawal of his claim nor any special circumstances which would be unjust not to re-open his claim.  Again I pause here to note as above that there was in fact nothing of what the Applicant’s claim was about, let alone what change of circumstances since the withdrawn of his claim some five months ago.

7. On 10 April 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and in Section 2 of his Notice of Appeal he put forward the following grounds for his appeal:

“ … I was wrong, very severe problem in Pakistan is that we know and we do not, we know, that we nor do I have any Future in Hong Kong and I am happy here. Just let me live my life my life be spared thush [sic] and the people then I will go out on your own, in the end, we urge the Hong Kong Immigration, I consider my request …”

8.  The Applicant was however by then serious out of time with his Notice of Appeal,as section 37ZS of the Ordinance requires that the notice of appeal must be filed within 14 days after the notice of the Director’s decision is given, and in the Applicant’s case, the 14-day period expired on 17 October 2016, and so he was almost six months late with his appeal.

9.  For late filing of a notice of appeal, section 37ZT of the Ordinance 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 unfair 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.”

10.  In Section 5 of his Notice of Appeal, the Applicant gave the following reasons for his late filing:

“ It is respectful submission that I received my documents late / I got my documents late because of that I could not file appeal within specified time.

This is the reason I got late for filing appeal.

Please this late appeal of mine be accepted and this appeal be moved forward/ for further action.”

11.  Accordingly, and pursuant to section 37ZT(2) of the Ordinance, the Board considered, without a hearing, the Applicant’s application for late filing of his Notice of Appeal, and upon finding that he had failed to provide any good reason for his serious delay, on 7 July 2017 refused his application for late filing of his Notice of Appeal.

12.  On 9 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he stated that he still needed more time to submit more documents in support of his claim. 

13.  He was by then also late with his application, 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.

14.  As the last day of the three-month period for him to filed his Form 86 fell on 7 October 2017, the Applicant was therefore more than six 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.

15.  In the Applicant’s case, a delay of more than six months must be regarded as very substantial or excessive, for which he explained at the hearing of his application that he was not aware of the rules and that he had not received the Board’s decision until much later when he was informed by the Immigration Department without providing any further supporting details or documentary evidence.  As such I am not satisfied that he has provided any good reason for his serious delay.

16.  More significantly, nor did he put forward any reasonably arguable ground or basis to challenge the Board’s decision in refusing the late filing of his Notice of Appeal, and at the hearing of his application when he was invited to do so, he simply stated that he would like to be given more time to remain in Hong Kong as his life would still be in danger in his home country, which is of course not a reasonably arguable ground for his intended challenge of the Board’s decision.

17.  Given the fact that the Applicant is no longer legally represented, and that the Courtshall adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, I shall proceed to consider the Board’s decision with rigorous examination and anxious scrutiny as to its reasons for refusing his late filing of the Notice of Appeal.

18.  As noted above, the reason provided by the Applicant for his late filing is that he received his document late but without providing any particulars or clarification as to what documents he was referring to, and given the fact that no documents were attached to his Notice of Appeal other than the Director’s Decision that he wanted to appeal, the Board was entitled to find, as it did in its decision, that the Applicant had failed to provide any good reason for his late filing of his Notice of Appeal, as it explained in [10]:

“ It is for the Appellant to provide sufficient grounds to justify his breach of the time limit, which in this case was late by as long as half a year. He has not provided any reason or stated how, when, or why he had ‘received documents late’ nor what documents they were, nor when it was that he had received what documents. He has provided nothing to satisfy Section 37ZT(2) of the Ordinance or the Petition Guide paragraph 9.2 for his gross breach of the time limit. I see no basis to exercise discretion to extend time, hence the appeal is a nullity.”

19.  As for the requirement of section 37ZT(2) of the Ordinance for the Board to take account of any other relevant matters of fact within its knowledge to decide whether by reason of special circumstances that it would be unjust not to allow the late filing of the Applicant’s Notice of Appeal, the Board did also include the merit, if any, of his intended appeal when it referred to his proposed ground of appeal in [9] of its decision, and given the total lack of particulars or specifics from the Applicant as already noted above, the Board was in my judgment entitled to find them to be just bare assertions and not valid basis for itto exercise discretion to extend time for his intended appeal or to justify re-opening his claim.

20.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s case.

21.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his application.

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