JASWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2091/2018

[2020] HKCFI 1706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2091 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of India who arrived in Hong Kong on 10 January 2015 with permission to remain as a visitor up to 24 January 2015 when he did not depart and instead overstayed and surrendered to the Immigration Department on 26 January 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Dharamkot, District Ferozepur, Punjab, India.  After leaving school he assisted his father in his farming in their home village.

3.  In 2013 his father had a dispute with the paternal uncle over how to share his grandfather’s land upon his death which led to a fight on one occasion during which his father and brother were attacked by his uncle and his followers that they suffered injuries and were subsequently taken to the hospital for treatments.

4.  After the Applicant had reported the matter to the police, and when he was on his way home, he was ambushed by his uncle and his men during which the Applicant was beaten with wooden sticks until some passers-by intervened and brought him to the hospital for treatments.  

5.  Upon his discharge from the hospital, the Applicant’s father moved the Applicant and the family to Ludhiana, but when the Applicant later heard that his uncle was looking for him everywhere, he felt it was no longer safe to remain in India, and so on 7 January 2015 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 6 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  Whilst released on recognizance pending determination of his claim, the Applicant was arrested by police on 5 September 2017 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 13 months.       

7.  By a Notice of Decision dated 22 January 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (the “Ordinance”) (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that his problem with his uncle was a private family dispute over land without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for his uncle to locate him.

9.  On 14 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but by then he was more than 3 months late with his Notice of Appeal, as section 37ZS(1) of the Ordinance requires that the notice of appeal be filed within 14 days after notice of the Director’s decision has been given to an applicant unless late filing is allowed by the Board, and for which section 37ZT(1) of the Ordinance provides that the applicant must include in the notice of appeal an application with a statement of the reasons for failing to file the notice within that period together with any documentary evidence in support.

10.  In Section 5 of his Notice of Appeal, the Applicant included a statement of reasons for his delay in filing his appeal in that he was then being detained at Pak Sha Wan Correctional Service, that he could not afford to hire a lawyer, and that he could only get help from a fellow prisoner in preparing his Notice of Appeal.

11.  It is imperative to note here that the Applicant also in Section 2 of his Notice of Appeal put forwards 6 pages of his proposed grounds of appeal against the Director’s decision.  

12.  Pursuant to Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the Applicant’s late filing of his Notice of Appeal, and by a decision dated 19 September 2018 it refused his late filing for the following stated reasons:

“ Reasons of Refusal

8. It is unacceptable that the Petitioner was late for 3 months and 7 days in filing his NOA.

9. In Paragraph 40 of the NOD, the Petitioner was advised that he must file his NOA within 14 days. The deadline of his filing the NOA was on 7 February 2018 but he filed his NOA on 14 May 2018.

10. In Section 5 of the NOA claim form, the Petitioner set out the reasons why he was late in filing his NOA. He stated that: (A) he was not fluent in English and he was unable to find someone to help him; (B) he tried finding a lawyer to help him but failed because the lawyers were asking too much money; (C) a prisoner helped him file the NOA form.

11. I reject reason (A) he stated. His lack of fluency in English would not hinder his seeking any assistance for filing the NOA. The NOD was sent to him through the CAT office of DLS. He must have previously acquired DLS service in relation to his non-refoulement claim. Even if what he claimed in his letter dated 18 May 2018 which was received by the Secretariat on 21 May 2018 was true, DLS had already informed him of the NOD at least on 25 January 2018. He could have asked the welfare officer in Pak Sha Wan Correctional Institution (“PSWCI”) where he was then incarcerated to help him contact DLS. There is no reason why there is a delay of over 3 months in filing the NOA.

12. I do not accept reason (B) that despite his efforts in finding some lawyers to represent him, he failed as they were too expensive. At the time when the NOD was given to him, he was in prison. He could have asked the PSWCI welfare officer to contact DLS who provides free legal advice.

13. I reject reason (C) given by the Petitioner. He did not mention how long after he received the NOD before asking a prisoner to help him fill in the form. I do not accept that he had to wait until he “met” the prisoner instead of asking the PSWCI welfare officer for assistance.

14. Was the Petitioner concerned about his own safety if he is to return to India, he must want to know the result of the non-refoulement claim. He should know well or at least expect that the document (NOD) he received must be related to the non-refoulement claim. Yet, he did nothing immediately upon the receipt of the NOD. Rather, he wasted time till he asked a prisoner to help him “at the end”.

15. The Petitioner’s lax attitude shows that he is not interested in filing his NOA as soon as he could, rather, he exceeded the deadline of filing it. His attitude is contrary to the conduct of a person who fears that his life was at risk if and when he returns to his country.

16. The reasons given by the Petitioner cannot support his delay in filing his NOA dated 14 May 2018 which is 3 months and 7 days exceeding the deadline, i.e. 7 February 2018 following the issuance of the NOD dated 22 January 2018.

17. The Petitioner failed to comply with the time limits as laid down in section 37ZS(1) of the Ordinance and gave no special circumstances to explain that failure.

18. No documentary or other supporting evidence was provided by the Petitioner.

19. There are no other relevant matters of fact within my knowledge or special circumstances which would make it unjust not to allow the late filing of the appeal.

20.     Accordingly, I refuse the Petitioner’s late filing application.”

13.  On 2 October 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 and the adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim as being unfair and unreasonable;

(2) that the adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3) that the Director failed to appreciate or give 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;

(4) that the Director failed to take into account of the fact that the Applicant was tortured at the behest and the state law enforcement agencies for which the state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give enough weight to those evidence from the listed COI which supported the Applicant’s aversions that the police in his country would not be able to protect;

(6)  that the Director failed to consider the problems of corruption and incompetency of the administration in the Applicant’s home country as reported by various human rights organizations which stated testament to the Applicant’s assertions and was therefore a clear case of unfair attitude shown by the Director which should render his decision void; and

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

14.  While most of these complaints do not appear to be relevant to the Board’s reasons for refusing the Applicant’s late filing of his Notice of Appeal, and that the adjudicator was in my view entitled, based on the information available before the Board, to reject his reasons for his more than 3 months delay with his appeal, but given the serious implications of the Board’s decision on the Applicant, indeed high standards of fairness requires that the decision be considered by the court with rigorous examination and anxious scrutiny, of which I shall start by referring first to the relevant statutory requirements which the Board is to undertake when dealing with such an application under Section 37ZT(2) of the Ordinance as follows:

“ 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.”

15.  Subsection (3) then provides that:

“ If the Appeal Board is satisfied that by reasons 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.”

16.  In the Applicant’s case, it seems from the stated reasons given by the Board for refusing the late filing of his Notice of Appeal, that it did not proceed to evaluate the merits of the appeal by reference to any of those grounds set out in Section 2 of his Notice of Appeal as noted above, which were clearly relevant matters of fact within the knowledge of the Board as stipulated by section 37ZT(2)(b) of the Ordinance, and as held by the Court of Appeal in Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019, as Hon Lisa Wong J in giving judgment of the court stated:

“ 23. … 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.

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.”  

17.  In the premises and for the reasons given above, I am of the view that it is reasonably arguable that the Board, in refusing the late filing of the Applicant’s Notice of Appeal, had failed to consider the merits of his intended appeal which is a relevant matter of fact within the Board’s knowledge under Section 37ZT(2)(b) of the Ordinance.

18.  Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on that basis, and to issue an originating summons under Order 53 rule 5 of the Rules of the High Court, Cap 4A within 14 days from the date of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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