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

HCAL 2866/2019

[2023] HKCFI 2574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2866 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

1.  Extension of time for the applicant to file Form 86 for his application be granted;

2.  Leave for the applicant to apply for Judicial Review of the Board’s Decision be granted; and

3.  The applicant must, within 14 days after this Order, issue the originating summons for his application in accordance with Order 53, rule 5 of the RHC.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 2 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). His application is late. This issue will be dealt with below.

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 28 June 2023.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of India. He attempted to enter Hong Kong on 14 February 2016 but was refused permission to land. During the transit of repatriation to Mainland, he escaped. On 23 December 2016, he surrendered himself to the Immigration Department. On 24 February 2017, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his wife’s family because they disapproved of the marriage.

5.  According to the applicant, he started dating Paramjit in around 2008. One day in early 2015, he received a phone call from Paramjit’s brother who inquired the applicant’s identity. At that time, the applicant realized that Paramjit’s family suspected that she was in a relationship and kept her under close monitoring. On 5 January 2016, knowing that Paramjit’s family would disapprove of the marriage, the applicant eloped with her.

6.  A few days later, the applicant and Paramjit were located by her family. They assaulted the applicant and threatened to kill him whenever they saw him. The applicant later received medical treatments and his father also reported the assault to the police. Nevertheless, the police refused to assist. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 14 June 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past events indicated that the level of risk of harm upon refoulement was low [12]-[15]; (ii) state protection would be available to him [16]-[22]; and (iii) internal relocation was also a viable option [23]-[27].

The Board’s Decision

9.  On 19 July 2017, the applicant filed his notice of appeal/petition against the Director’s Decision. He was 19 days out of time [3]. In his reasons for late filing, in gist, the applicant stated that he was arrested on 23 June 2017 and later detained up to 26 June 2017. Thereafter, he finished his imprisonment on 6 July 2017 [4].

10.  The Board considered that the applicant had legal assistance from the Duty Lawyer Service (“DLS”) and the Director’s Decision was served on him care of the DLS on 14 June 2017. Therefore, the applicant’s explanation that he was arrested and detained from 23 June 2017 to 6 July 2017 was insufficient to explain the delay [15]. Meanwhile, the Board found that there were no other matters known or revealed by the factual basis of his claim which might amount to special circumstances to warrant a late filing of his notice of appeal/petition [19]. As a result, the Board refused to exercise its discretion to allow the late filing.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 30 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In the applicant’s affirmation in support of his application, the applicant said he disagrees with the Board and his life will be in danger if he returns to his country.

DISCUSSION

13.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 2 November 2018. The delay is more than 10 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he is late for his application. But he was detained in the CIC and he considered that the Board was unreasonable to refuse to extend time for him to file his notice of appeal.

16.  The question before this Court is whether the Board was correct in refusing to extend time for the applicant to file his notice of appeal for a delay of 19 days. The Board has given 3 reasons, viz.:

(1)  19 days’ delay is serious and significant;

(2)  the reasons given by the applicant that he was detained, first by police and later, by the Immigration Department were not acceptable; and

(3)  it is fair and just to refuse the applicant’s application for extension of time to file his notice of appeal.

17.  First, I take a different view that 19 days’ delay is serious and significant, given the applicant’s reasons of him being detained for the period. Second, the Board considered that since the Director’s Notice of Decision was given to the applicant’s duty lawyer, his reason for not receiving it was not acceptable. In reaching its decision, there is not any finding of the Board in relation to how the duty lawyer had attempted to communicate with the applicant concerning the Director’s Notice of Decision. Absent any enquiry, it will be Wednesbury unreasonable for the Board to have come to its conclusion. Third, for the reason mentioned, it is not just and fair for the Board not to extend time for the applicant to file his notice of appeal.

18.  Furthermore, the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, in a case where the applicant was late in filing his notice of appeal to the Board and he had given no reason for such delay, the Court of Appeal held,

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

20. … …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

19.  The Board did not consider the merits of the applicant’s appeal.

20.  I understand that section 37ZT of the Ordinance has been amended. The operation of the amended version commenced on 1 August 2021 and it has no retrospective effect. The reasons of the Court of Appeal case above applied when the Board dealt with the applicant’s appeal.

21.  The applicant has shown that he has realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I therefore extend time for the applicant to file Form 86 for his application and I grant leave to the applicant to apply for judicial review of the Board’s Decision.

23.  The applicant must, within 14 days after this Order, issue the originating summons for his application in accordance with Order 53, rule 5 of the RHC.

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