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

HCAL 2506/2020

[2024] HKCFI 458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2506 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.   Leave to amend the Form 86 be granted;

2.   Leave to file further affirmation evidence be granted;

3.   Extension of time to apply for leave for Judicial Review be refused; and

4.   The application for leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 29 December 2020 for leave to apply for judicial review (the “leave application”) of the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 2 December 2016 and 17 January 2020 (respectively the “First Decision” and “Second Decision”) affirming respectively the decision of the Director of Immigration (the “Director”) in his notice of decision dated 14 November 2014 (the “First Notice”) and his notice of further decision dated 1 February 2017 (the “Second Notice”).  At the hearing, leave was granted to the Applicant to amend his Form 86 and to file further evidence by way of affirmation.

2.  The leave application was filed almost four years and one month after the date of the First Decision and almost eleven and half months after the date of the Second Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, extension of time for filing the leave application is required.

Legal principle applicable to extension of time for filing the leave application

3.  Application for leave to apply for judicial review should be made promptly and usually within three months after the date of the decision sought to be reviewed.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Merits is usually a very important factor.  Where the delay is not very substantial, merits is usually the determinant factor.  Usually, if the first three factors are resolved in favour of grant of leave, there is no need to consider the remaining two.  But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. 

4.  The delay of almost three years and ten months in respect of the First Decision and almost eight and half months in respect of the Second Decision are very substantial.  In the absence of a reasonable explanation, leave may be refused on this ground of substantial delay alone without consideration of merits.

The Applicant’s explanation for the delay

5.  The Applicant claimed that the delay was caused by a combination of factors including his change of address, the time taken in processing his legal aid application, the misapprehension caused by the Director’s invitation for information relating to his claim for non-refoulement protection under Article 2 of the Bill of Rights (“BOR 2”) and the time taken to obtain legal advice.  The major thrusts of his explanation are, first, his misapprehension that the Director will re-screen his claim under all four applicable grounds; and second, his misapprehension that the Director will on his behalf inform the Board of his change of address. The questions are whether his misapprehensions are reasonably held and credible.

6.  As for his other explanations, namely, waiting for the outcome of his legal aid application which was never approved and his need to obtain legal advice, they carry no weight against a delay of such magnitude.  Furthermore, the Hong Kong courts are very user friendly.  There is nothing to prevent an applicant from acting in person.  Particularly for non-refoulement claimants, the interest of a litigant in person is very well safeguarded by the low standard of proof he has to discharge, the high standard of fairness the court has to observe and the host country’s duty of joint endeavour in establishing his claim. 

Factual background leading to the delay

7.  The First Decision was issued on 2 December 2016.  In the same month, the Applicant promptly applied for legal aid to challenge that decision.  He did not make the leave application at the same time, though.  Then, while waiting for the outcome of his legal aid application, he received the Director’s letter dated 4 January 2017 inviting him

“to submit additional facts which he consider relevant to (his) non-refoulement claim on all applicable grounds for non-refouleent protection, including any other absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”), including right to life under Article 2 (“BOR 2” and “BOR 2 risk”), in case (he) have omitted any relevant facts in relation thereto before because of any misunderstanding on what “all applicable grounds” means.” (the Court’s emphasis added)

By that invitation, the Applicant claims he was led to the misapprehension that his claim for protection would be screened afresh on all applicable grounds, including BOR 2 risk ground.  Hence, he saw no need to make the leave application at that stage.  His misapprehension is founded on the phrase “on all applicable grounds” quoted in the above passage.

8.  On 1 February 2017, the Director issued his Second Notice refusing the Applicant’s claim under BOR 2 risk ground.  The Applicant appealed the Second Notice.  Before the Board issued its Second Decision, the Applicant changed his address on 1 November 2019.  He informed the Director of his new address, but not the Board.  He claims he did not inform the Board of his change of address due to his honest though mistaken understanding that the Immigration Department would relay the same to the Board.  As a result, he did not receive the Second Decision.  He only learned about the Second Decision when he reported his recognisance to the Immigration Department on or around 17 August 2020.

9.  On 24 August 2020, the Applicant attended the secretariat of the Board and requested for a copy of the Second Decision.  On 16 September 2020, he retained Messrs Daly & Associates (“D&A”) to act for him.  D&A immediately made a data access request to the Immigration Department for all necessary documents for the intended leave application.  D&A obtained an anonymity order on 24 December 2020 before filing the leave application on 29 December 2020.   

Credibility and reasonableness of the explanation in respect of the First Decision

10.  The Applicant did not produce a copy of the Director’s letter dated 4 January 2017 to support his claimed misapprehension.  He relies on paragraph 1 of the Second Notice quoted above.  It appeared that the Director did invite the Applicant to submit additional facts which the Applicant considered relevant to his non-refoulement claim on “all applicable grounds” which he thought relevant and which he may have omitted due to misunderstanding of what applicable grounds means.  There is no representation, whether express or implied, that the Director was setting aside his First Notice and to re-assess the Applicant’s claim on all applicable grounds afresh.  By no reading of that passage, assuming it was quoted word for word from the Director’s letter of 4 January 2017, could a reasonable reader in the shoes of the Applicant with his disadvantage in his English language capability it to convey the misapprehension claimed by the Applicant.  The Director invited submission of facts relevant to all applicable grounds.  He never made any express or implied representation that the facts submitted were for the purpose of re-assessing the Applicant’s claim afresh on all applicable grounds. 

11.  Furthermore, it is important to note the last sentence of that paragraph, which reads:

 “You have been duly notified that a further written decision of your non-refoulement claim on any other applicable grounds, taking into account any new facts submitted and all facts submitted previously under the unified screening mechanism (“USM”), will be made if you have not produced any relevant facts to us by the end of 18 January 2017.”  (the Court’s emphasis added)

That last sentence indicates that the Applicant had been informed by a previous correspondence, presumably the letter of 4 January 2017 which he did not produce, that the exercise was related to assessment of his claim under another applicable ground not previously considered, ie BOR 2 risk ground.  It is clear that the Director’s intention was to assess the Applicant’s claim on “any other applicable grounds”, ie the BOR 2 risk ground. 

12.  As for the phrase “on all applicable grounds” heavily relied on by the Applicant, that phrase was understandably used by the Director to invite the Applicant to submit practically anything which he may consider relevant to his claim for non-refoulement protection so that nothing would have been missed out and no stone would have been left unturned.  The Director was doing so in the interest of the Applicant by casting a very wide net to ensure the above purpose will be achieved.  Having regard to the factual matrix, it is clear that it never was the Director’s intention to set aside his First Notice issued just 33 days ago and to re-assess the Applicant’s claim on all applicable grounds afresh.  By no reading of the passage relied on by the Applicant could it give rise in the mind of a reasonable reader the misapprehension allegedly entertained by the Applicant.  This Court does not accept the alleged misapprehension is honestly held by the Applicant.  And even if it were, this Court finds an explanation founded on such a misapprehension is not reasonable.

13.  This Court therefore comes to the conclusion that the Applicant has no reasonable explanation for the very substantial delay of almost three years and ten months in applying for judicial review of the First Decision.  Following the decision in Po Fun Chan v Winnie Cheung, extension of time for filing the leave application in respect of the First Decision is refused without the need to consider merits of the intended application, prejudice and question of general public importance.

Credibility and reasonableness of the explanation in respect of the Second Decision

14.  As for his misapprehension that the Director will on his behalf inform the Board of his change of address, it is very far-fetched and a very wishful thinking on his part.  In Karamji Singh[3], the Court of Appeal held:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346.”

15.  The Applicant filed his notice of appeal with the Board on 6 February 2017.  On his own admission, he moved to a new address on 1 November 2019.  He claims he had informed the Immigration Department of his change of address but did not inform the Board under the misapprehension that the Immigration Department would do so on his behalf.  It was only when he reported his recognisance that he came to know that his appeal had been dismissed.  It is not his case that he had requested the Immigration Department to inform the Board of his change of address or that the Immigration Department had undertaken to do so on his behalf.  He was appealing to the Board against the decision of the Director.  He filed the notice of appeal with the Board at a different address from the Immigration Department. He ought to know that the Immigration Department and the Board are two different entities.  There is no basis for his belief.

16.  To the Court’s knowledge, non-refoulement claimants are usually released from immigration detention on their own recognizance and have to report to the Immigration Department every now and then, usually once a year.  His so called “informed the Immigration Department” is most probably what he did in the course of reporting his recognisance.  It is doubtful if his misapprehension is actually held, let alone honestly.

17.  There is no need for this Court to make such a finding.  Even accepting that his misapprehension were honestly held by him, his explanation is not a reasonable one.  It is not reasonable for him to expect the Immigration Department would inform the Board about his change of address in a matter which is personal to him.  The interval between the date of the Second Decision and the date of filing of the leave application is almost eleven and half months. The Applicant had no reasonable explanation for the delay of seven months and seven days from 17 January 2020, the date of the Second Decision, to 24 August 2020 when he took the first step in prosecuting the leave application.  He gave an account for a period of four months and five days from 24 August 2020 when he requested for a copy of the Second Decision to 29 December 2020 when D&A filed the leave application on his behalf.  Accepting three months as a reasonable time taken by D&A to take instructions, obtain documents, consider and give legal advice and file the leave application, a period of one month and five days was not accounted for.   In overall terms, he was unable to give a reasonable explanation for a delay of almost eight and half months.  That delay is the consequence of his failure to inform the Board of his change of address.  On the authority of Karamji Singh, he has to bear the consequence of any delay occasioned by the ineffectiveness of his outdated address.  Following Po Fun Chan v Winnie Cheung, the delay is so substantial that leave to apply may be refused by reason of delay alone.

18.  Furthermore, his leave application in respect of the Second Decision has absolutely no prospect of success.  He has not even advanced any ground of review against the Second Decision.  His grounds of review are all directed at the First Decision.  This is understandable because BOR 2 protects against arbitrary deprivation of life by the government of the home state and there is no evidence that the Applicant is subject to a death sentence or at risk of genocide in his home country.

19.  For these reasons, extension of time for filing the leave application in respect of the Second Decision is refused without need to consider prejudice and general public importance.

Conclusion

20.  For the above reasons, extension of time for filing the leave application and the leave application are refused.

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