ABBAS QAISAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1543/2018

[2020] HKCFI 2109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1543 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.  A claimant may, before a torture claim or non-refoulement claim is decided, withdraw the claim by notifying an immigration officer in writing, and may also after such claim has been withdrawn apply to re-open it upon complying certain requirements to satisfy an immigration officer, as provided by section 37ZE of Part VIIC of the Immigration Ordinance (“the Ordinance”) as follows:

“ (1) A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2) Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—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.

(3) If an immigration officer decides to re-open a person’s torture claim under subsection (2), the immigration officer must, by written notice, inform the person of the decision.

(4) 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 section 37ZR to appeal against the decision.

(5) …”

2.  In the present case, the Applicant is a 37-year-old national of Pakistan who first raised a torture claim under Part VIIC of the Ordinance with the Immigration Department but which was subsequently rejected by the Director of Immigration (“the Director”) on 13 September 2013.

3.  The Applicant did not appeal against that decision, but on 24 September 2013 submitted a written representation for non-refoulement protection with the Immigration Department.  In the letter he stated he was then residing in Minden Apartment (“Minden address”).

4.  By a letter dated 25 September 2013 to his Minden address, the Immigration Department invited the Applicant to make further representation regarding his claimed risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”).

5.  On the same day the Immigration Department received a letter from the Applicant’s assigned lawyer confirming legal representation had been granted to the Applicant by the Duty Lawyer Service (“DLS”).

6.  By a letter dated 10 February 2014 to the Applicant’s address in Tai Kwok Tsui (“Tai Kok Tsui address”) the Immigration Department provided a brief guideline of the applicable procedures for non-refoulement claims under the newly implemented Unified Screening Mechanism (“USM”) launched by the administrative for screening such claims.

7.  On 30 June 2015 the Applicant wrote to the Director of Immigration to request to withdraw his non-refoulement claim in which he stated:

“ … I want to go back to Islamabad Pakistan as soon as possible. I am safe to go back home and I will buy my own air ticket. I want to cancel all my non-refoulement claims in Hong Kong. I don’t need to see my non-refoulement case officer. I have no other requests.”

8.  By a letter dated 7 July 2015 to the Applicant at his Tai Kok Tsui address, the Director acknowledged receipt of his request and confirmed no further action would be taken of his non-refoulement claim.

9.  On 8 October 2015 the Applicant wrote to the Immigration Department to apply to re-open his case as he did not want to go back to Pakistan because his life would still be in danger.  It is relevant to note that in the letter he gave his “mailing address” at Room 191, 4^th Floor, Temple Street, Jordan (“Jordan address”).

10.  By a letter dated 13 October 2015 to the Applicant at a different address at Chungking Mansion, Tsim Sha Tsui (“Chungking Mansion address”), the Director required him, under section 37ZE(2) of the Ordinance, to give detailed reasons of the previous withdrawal of his claim and to provide evidence by 27 October 2015 to satisfy an immigration officer that since the withdrawal of his claim there had been a change of circumstances that could not reasonably have been foreseen by him and that when taken together with the previous material could increase the prospect of success of the claim, or special circumstances by reason of which it would be unjust not to re-open his claim.

11.  No response was received from the Applicant, and by a letter dated 25 November 2015 to him again at the Chungking Mansion address, the Director extended the time for him to provide those information as requested in the previous letter to 9 December 2015, and with a notice that failing which his request to re-open his claim would be considered based on all the available information without further notice.      

12.  Again there was no response from the Applicant, and by a Notice of Decision dated 21 December 2015 to him at the Chungking Mansion address, Director refused to re-open his claim for the following stated reasons:

“ In your letter of 30 June 2015, you stated you were safe to return to Pakistan so that you withdrew your non-refoulement claim. In your letter of 8 October 2015, you stated your life is still in danger if return to Pakistan. By letter of 13 October 2015, we requested you to provide sufficient information and evidence for our consideration on or before 27 October 2015. However, we did not hear from you ever since the letter was sent out to you on 13 October 2015. By letter of 25 November 2015, we wrote again to request you to provide sufficient information and evidence for our consideration on or before 9 December 2015. However, we do not receive any information from you up to present. Despite ample opportunity and time have been given, you have failed to provide sufficient evidence in writing to satisfy an immigration officer that your claimed risk of danger in Pakistan could not reasonably have been foreseen when you gave the withdrawal notification on 30 June 2015 or any special circumstances by reason of which it would be unjust not to re-open your claim. In this regard, it is decided not to re-open your non-refoulement claim.”

13.  Almost 2 years later on 4 December 2017, the Applicant lodged an appeal to the   Torture Claims Appeal Board (“the Board”) against the Director’s decision, but he was then clearly outside the 14-day period to file his notice of appeal required by section 37ZS of the Ordinance, for which he provided the following explanation in his statement of the reasons for his delay in section 5 of his notice of appeal:

“ I was late the reason behind was that I did not receive the letter. I changed the address And I did not receive the letter. When I received the letter and I came here. I kept signing after every two weeks and no one said to me that my case has finished, When I came to know I came here.”

14.  It is relevant to also note that in section 2 of his notice of appeal, the Applicant had also set out his claimed risk of harm in his home country and the grounds of his appeal/petition for his claim to be re-opened.

15.  Pursuant to section 37ZT of the Ordinance, the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s notice of appeal, for which the relevant subsections provide as follows:

“ (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.”  

16.  By a Decision dated 12 April 2018 the Board refused to allow the late filing of the Applicant’s notice of appeal upon rejecting his explanation of not receiving the Director’s letters as untruthful, that even if true that he had failed to duly update his correspondence address, and that there were no special circumstances such that it would be unjust not to allow the late filing of his notice of appeal.    

17.  On 3 August 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 in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) that he was not provided legal representation for his appeal to the Board;

 (2) that he was not given any oral hearing for his appeal before the Board;

 (3) that he was not given language assistance for his appeal to the Board which is procedurally unfair;

 (4) that due to his language barrier that he had been unable to provide the full picture of the problems in Pakistan that had been escalating and should be given a hearing to explain how he genuinely believed that there had been a change of circumstances that could not reasonably have been foreseen by him when he withdrew his claim application; and

 (5) that high standards of fairness required that he be given every reasonable opportunity to establish his claim.   

18.  He was however late with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

19.  As the last day of the three-month period for him to file his Form 86 fell on 12 July 2018, the Applicant was therefore about 3 weeks 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: AW v Director of Immigration [2016] 2 HKC 393.

20.  In the Applicant’s case, a delay of 3 weeks may not be regarded as substantial or significant for this type of applicants in their circumstances, for which the Applicant did not provide any explanation in his affirmation, nor did he attend the hearing of his application.  As such I do not know what reasons if any that the Applicant may have for his delay other than at best it may be due to the usual reasons of lack of legal assistance or language problem.

21.  As for the merits, if any, of his intended application, most of his proposed grounds are either not relevant or not applicable given that the Board was required by section 37ZT(2) to deal with the late filing of his notice of appeal on paper without a hearing, except for the last ground as to the application of high standards of fairness, given the serious implication of the Board’s decision thereby effectively depriving him of the second part of the two-tier enhanced screening process of his claim under USM, it does require the court to consider the Board’s reasons for refusing to allow the late filing of his notice of appeal with rigorous examination and anxious scrutiny.

22.  On the basis that it only received the Applicant’s notice of appeal on 4 December 2017, the Board was of course entitled to find such delay of almost 2 years substantial or significant, and for which it proceeded to analyze the Applicant’s statement of reasons and rejected his explanation as stated in it decision as follows:

“ 12. The Appellant in section 5 of the Notice of Appeal stated that he did not receive the letter, without submitting any documentary evidence.

12. The length of delay is not insignificant. He was specifically informed of such time limit in the Notice of Decision, which, as said, would have been explained to him by the DLS as a matter of course.

13. On a review of the papers, I notice that ample opportunities had been afforded to the Appellant during the years for the filing of representations and supporting documents, as well as to perfect his claim. In particular, I notice the following:

(i) The Appellant withdrew his claim on 30 June 2015 and changed his mind on 8 October 2015;

(ii) In the Immigration Department’s letter dated 13 October 2015, the Appellant was reminded to tender information before 27 October 2015;

(iii) The Immigration Department heard nothing from the Appellant and reminded the Appellant to reply on 25 November 2015;

(iv) The Appellant’s correspondence addresses have been updated during the years by the Immigration Department;

(v) In the Notice of Appeal, the Appellant first gave his Chungking Mansion address, but was subsequently amended to a new Ngau Tau Kok address;

(vi) The Appellant has failed to provide documentary evidence of his new address.

14. Apparently, the Applicant is aware of his duty to update his correspondence address and contact details as evidenced from his past conduct. It is implausible that he would take no steps to contact the Immigration Department about his change of address. Further, its sounds illogical that he merely sat back and waited for Immigration Department’s reply for almost 2 years without making any enquiry as to the progress of his case.

15. I reject the truthfulness of his explanation, which is bare allegation on his part, and conclude that there is no good reason for the default.”

23.  The Board then upon finding no special circumstances that would make it unjust not to allow the late filing of the notice of appeal refused to allow the Applicant’s late filing of his notice of appeal in [14].  

24.  It is clear from the Applicant’s case as stated in his statement of reasons and as recorded in the Board’s decision, the central issue is whether he did not in fact receive the Director’s letters of 13 October 2015 and 25 November 2015 requesting him to provide information for the Director’s consideration as to whether or not to re-open his claim, both of which were sent to the Chungking address as recorded by the Board in [3] of its decision in which it set out the chronology of the events which led to the appeal, but in which the Board also noted that in the Applicant’s letter dated 8 October 2015 to the Director to re-open his claim, he did give “a Jordan address”, as already noted above in [9] of this decision, which thus raise this obvious and inevitable question: With the Applicant having clearly updated his mailing address to the Jordan address, why were those two letters from the Director, with the first one merely 5 days later on 13 October 2015, sent to the Applicant at the Chungking address?

25.  It seems however that this question was never asked by the Board in its decision, nor does it appear to have dealt with the discrepancy of the two mailing addresses.  It is of course entirely possible that the Applicant, during those 5 days following his request of 8 October 2015 to before the Director’s first letter of 13 October 2015, may have again changed his mailing address to the Chungking address and so informed the Director, but there does not appear to have such information before the Board, and hence the Board should have either made enquires with the Director or the Applicant or both as to how the Chungking address came to be used by the Director to send his requests to the Applicant before proceeding to criticize the Applicant for failing his duty to update his correspondence address and to reject the truthfulness of his explanation.

26.  As such and in the circumstances it seems to me reasonably arguable that the Board failed to apply high standards of fairness in failing to conduct proper enquiry as to the truthfulness of the Applicant’s explanation for his late filing of his notice of appeal, and/or that in rejecting his explanation in the circumstances that its decision was not Wednesbury reasonable.   

27.  Furthermore, the Board after rejecting the Applicant’s explanation did not appear to have proceeded to evaluate all the relevant matters of fact within its knowledge as required by section 37ZT(2)(b) of the Ordinance, in particularly of the merit of the Applicant’s appeal by reference to his grounds set out in his notice of appeal, 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 for the court held:

“ 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.”     

28.  In the premises and for the reasons given, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the basis as stated above, and in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A direct the Applicant to issue an originating summons 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 on 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