SE v. TORTURE CLAIMS APPEAL BOARD

HCAL 1341/2018

[2020] HKCFI 1763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1341 OF 2018

     Application for Leave to Apply for Judicial Review

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

Following:

1.  leave be granted to the Applicant to apply for Judicial Review of the Torture Claims Appeal Board’s decision made on 26 April 2018 on Grounds (1) – (5), (7) and (8) as per the Call-1 Form;

2.  costs in the cause; and

3.  the Applicant’s own costs be taxed on Legal Aid Regulations.     

Observations for the Applicant:

Background

1.  The Applicant is a 35-year-old national of Afghanistan who entered Hong Kong illegally on 6 June 2015 and was arrested by police on 9 June 2015.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Afghanistan he would be harmed or killed by the Islamic fundamental political and military organization Taliban for failing to cooperate with them.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Zurmat, Paktia Province, Afghanistan.  He did not receive any formal education, and in 2003 he started working as a heavy machinery operator for a government construction company in road construction projects.

3.  In March 2015 the Applicant and his colleagues were sent by the company to build roads in Zurmat where there was a large Taliban military presence who regarded that the projects would hinder their military activities, and soon they would send armed men to the Applicant’s home to demand that he stopped working in the projects or to quit his job, and when he tried to explain that he needed the job to make his living, they beat him and threatened to kill him if he still failed to do as their demand.

4.  Then one night in March or April 2015, some Taliban came to his home and fired a rocket at his house that it collapsed and killed his parents, but he managed to make his escape and fled to Kabul City where he made arrangements to leave Afghanistan, which he did on 13 May 2015 for China, and from there he later sneaked into Hong Kong, 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 7 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.      

5.  By a Notice of Decision dated 14 June 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (the “Ordinance”) (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  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 the Taliban upon his return to Afghanistan as low due to the low intensity and frequency of past ill-treatment from them, that since he no longer worked for his former company or in any construction projects that there is no reason for the Taliban to have any further interest in him, that in the absence of 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 show that reasonable internal relocation alternatives are available in Afghanistan with a large population of 32 million people spread across a vast territory of more than 652,000 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 Afghanistan away from his home district in large cities such as Kabul where it would be difficult if not impossible for those Taliban to locate him.

7.  On 24 June 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but later by a letter dated 21 September 2016 he requested to withdraw his appeal.  By a notice dated 6 October 2016 the Board granted the Applicant’s request to withdraw his appeal.

8.  On 18 July 2017 the Director on his own initiative by a letter sent to the Applicant at his provided address in Tin Shui Wai (“Tin Shui Wai address”) inviting him to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  In the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 4 August 2017 rejected his non-refoulement claim under BOR 2 risk.  It was again sent to the said Tin Shui Wai address.

10.  On 11 January 2018 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as he was by then outside the 14-day period required to file his Notice of Appeal under section 37ZS(1) of the Immigration Ordinance, the Board therefore proceeded under section 37ZT(2) to decide as a preliminary decision without a hearing whether to allow such late filing.

11.  By a decision dated 26 April 2018, the Board found the Applicant’s Notice of Appeal to have been 4 months and 21 days late which was a serious and significant breach, that his explanation was irreconcilable with and even contradicted by information in the documents submitted earlier by him, and refused the late filing of his Notice of Appeal.

12.  On 10 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds as amended for his intended challenge:

(1) error of law in treating the Notice of Appeal as late;

(2) presumption of late filing as a material mistake of fact;

(3) failure to take into account relevant considerations including the date of service and the Applicant’s change of address and failure to give reasons;

(4) overreliance on irrelevant or periphery considerations including circumstances prior to the material date;

(5) irrational findings as to the Applicant’s integrity and credibility;

(6) oral hearing necessary before resolving key factual issue against the Applicant;

(7) failure to take into account the merits of the appeal being a relevant consideration to the Applicant’s application; and

(8) appeal decision and refusal to reconsider constitute fettering of discretion.    

13.  Before proceeding to consider these grounds, it would be helpful to first set out the entire section 37ZT of the Ordinance which contains provisions regarding late filing of notice of appeal as follows:

“ Late filing of notice of appeal

(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 the 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 unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice of appeal 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.”

14.  In his Notice of Appeal dated 30 January 2018 against the Director’s Further Decision, the Applicant did include in section 5 of the notice an application for late filing and a statement of the reasons therefor as well as attaching a copy of the Further Decision (Bundle of Document (“BD”) 65 - 69).

15.  Essentially the Applicant claimed in his statement that he never received the Further Decision in the mail despite having already informed the Immigration Department in March 2017 that he had moved to a new address in Yuen Long (“Yuen Long address”), and that it was not until 18 January 2018 when he was told by the Immigration Department to attend a deportation interview on 22 January 2018, that it was then when he was informed of the Director’s Further Decision, and that it was on 24 January 2018 with the assistance of the Justice Centre Hong Kong that he was able to obtain a copy of the Further Decision when he realized that it had been sent to his previous Tin Shui Wai address, and that within 7 days on 31 January 2018 that he filed his Notice of Appeal to the Board.

16.  It would also be relevant to mention here that in section 2 of his Notice of Appeal, the Applicant also provided 5 grounds for his appeal against the Director’s Further Decision (BD 65).  It is with this relevant information in mind that I now proceed to consider his proposed grounds for his intended challenge against the Board’s refusal to allow the late filing of his Notice of Appeal.

Grounds (1) – (6): The Board erred in law and in fact in determining that the Notice of Appeal was late       

17.  As the first 6 complaints or grounds all relate to the Board’s finding and determination that the filing of the Applicant’s notice of appeal was late, they can therefore be considered together, though not necessarily in the same order as listed.

18.  For the Board to find whether the filing of a notice of appeal is late or not, it must be a fact based on section 37ZS(1) of the Ordinance which provides as follows:

“ A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of appeal within 14 days after notice of the decision is given to the person unless filing of the notice is allowed by the Board under section 37ZT(3).”

19.  Hence it is clear that the 14-day period to file a notice of appeal does not run until the decision is received by the claimant, usually by mail to his last known or reported address, of which therefore issues may arise, as in the present case, as to what is in fact the last known or reported address of the claimant, or whether he has in fact received it.  

20.  In its decision the Board did identify the points raised by the Applicant in his statement of reasons regarding the filing of his Notice of Appeal which he actually stated as not late as the Further Decision had been wrongly sent to his previous Tin Shui Wai address notwithstanding the fact that he had earlier in March 2017 already informed the Immigration Department of his change to the Yuen Long address.

21.  Of the Applicant’s statement, the Board set out its consideration and evaluation in the decision as follows:

“ 32. The widest approach has been taken in relation to this application, and relevant matters of fact within the knowledge of the Board were also borne in mind. Primarily, but not exclusively, these matters were:

(a) At all material times, the Petitioner must have known that his application for protection from refoulement pursuant to BOR2 was being considered by the Director of the Immigration Department.

(b) At all material times, the Petitioner must have known that he had written a letter dated 21 September 2016 to withdraw his application for protection from refoulement pursuant to all the other grounds except BOR2, and that his application to withdraw all the other grounds had been approved by the Board.

(c) The Petitioner must have known that once the Director had made his Decision on the Petitioner’s BOR2 non-refoulement application, the Immigration Department would contact him with the result, and that he would have limited time to respond.

(d) The Petitioner must have known that the Director would contact him via the address he had reported as his contact address. His case was that, although he had initially given the Tin Shui Wai address to the authorities (Flat E, 28/F, Block E, Grandeur Terrace, 88 Tin Shui Wai Road, Tin Shui Wai, New Territories, Hong Kong) as his contact address, it was not his address; he had never stayed or visited the address; and he had given it because his unnamed acquaintance had agreed to allow him to state the Tin Shui Wai address as his contact address. The Board found that there were a number of issues raised by those contentions. First, he denied that it was his address. If it was not his address, he should not have given the address to the authorities as his contact address in the first place. By telling the authorities that it was his contact address was wrong. At best it was misleading; at worst it was a lie. Second, he claimed that he had never stayed or visited the address. This statement is inconsistent with, and irreconcilable with the fact that he had stated in his Notice of Appeal dated 24 June 2016 that his residential address was “Flat 28E, 28/F, Block 3, Grandeur Terrace, New Territories, Hong Kong”. This statement is also inconsistent with, and irreconcilable with the fact that he had stated in his letter to the Immigration Department dated 21 September 2016 (that he wished to withdraw his Appeal) that his address was “Flat E, 28/F, Blk 3, Gradeur (sic) Terrace, 88 Tin Shui Wai Road, Tin Shui Wai, NT.”

(e) The Petitioner did not touch upon the issue of his application in 2016 to withdraw his claim pursuant to all grounds save for BOR2. The Petitioner did not mention anywhere that he had made such an application, or that it had been granted. The Petitioner did not mention anywhere that he had made such an application using the Tin Shui Wai address.

(f) It was noted that although the Petitioner had claimed that he had provided the Tin Shui Wai address to the authorities out of convenience, and even though he had never stayed or visited that address, the Petitioner omitted some very important information, he had failed or neglected to tell the Board the arrangements had had made with that unnamed acquaintance in relation to the checking for and delivery of his mail. If the Petitioner had never visited the Tin Shui Wai address of that unnamed acquaintance, the arrangements made with that unnamed acquaintance in relation to the delivery of his mail to him would assume paramount importance.

(g) All the matters noted by the Board ante would be relevant even if it was accepted (for the sake of argument) that the Petitioner had indeed informed the Immigration Department of a change to his present Yuen Long address in March 2017.

33. The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in HCAL 9/2016, Begum and Denton.

34. The legal principles have been considered and observed. There is a need to enforce compliance with rules as set out in the Ordinance; and the need for this type of application to be conducted efficiently and at proportionate cost. The Board has taken into account the seriousness and significance of the breach and that the Petitioner’s explanation was irreconcilable with, and even contradicted by information in the documents submitted earlier by the Petitioner himself.

35. In all the circumstances, the Board is satisfied that the late filing of this Petitioner’s Notice of Appeal can justly be rejected.”   

22.  Mr Timothy Parker assigned by Legal Aid Department to represent the Applicant submits that given the fact that the Immigration Department had been notified by the Applicant of his Yuen Long address over four months prior to the date of the Further Decision but which the Director failed to update their records and instead sent to the former Tin Shui Wai address, hence the date on which the Further Decision is presumed to have been given to the Applicant as per section 37ZV(3) must be adjusted accordingly, and thus the Board has fallen into legal error by failing to consider facts which are not only relevant but also core to the application and which therefore renders its decision unlawful.

23.  Furthermore, Mr Parker submits that it is procedurally unfair in failing to give reasons as to why the Board treated the filing as late in the circumstances, as its only limited reference to the change to the Yuen Long address was at §32(g) of its decision, and no reason was given to explain why was the Applicant’s notification in March 2017 not accepted as a valid one under section 37ZA of the Ordinance.

24.  If the Board indeed refused to accept that the Applicant had informed the Immigration Department of the change to his address in March 2017, Mr Parker submits that for it to deal with such a core issue, procedural fairness requires that the Applicant be given a hearing to resolve the issue of credibility and the factual issues.     

25.  Mr Parker further submits that the Board arrived at its decision that the Applicant’s filing was late by relying instead on a series of irrelevant and periphery circumstances prior to the material date to arrive at its irrational findings as to his integrity and credibility by attacking the way he used the Tin Shui Wai address as his contact address as misleading or a lie which was unfounded and irrational.

26.  As already noted in §§18 - 19 above, it is clear that for the Board to decide whether to allow the late filing of a notice of appeal, it must first make factual finding based on the evidence and information before it whether the filing was indeed late.  In most cases it would not be an issue, but here it is obvious from the Applicant’s statement that it was to be the core issue of his application, and hence the Board must first decide whether to accept his explanation that he did notify the Immigration Department in March 2017 of his change of address prior to the Director’s Further Decision, and if not it must give cogent reasons as to why his explanation was not accepted before proceeding to decide whether there were special circumstances which may render it unjust not to allow the late filing of the Notice of Appeal.

27.  As it would therefore go to the issue of his credibility, and while it was to be a preliminary decision without a hearing as stipulated by section 37ZT(2) of the Ordinance, if the Board were to take issue with the Applicant’s explanation, procedural fairness as well as high standards of fairness in dealing with this sort of applications require that it should make enquiry with the Director to ascertain whether the Immigration Department was indeed so informed by the Applicant of his change of address in March 2017 as alleged.

28.  However, it does not appear from its decision that the Board did that, nor does it appear to have given any or sufficient reasons why the Applicant’s explanation was not accepted, or for that matter why was it relevant to raise any issue with his previous use of the Tin Shui Wai address, and if so the Applicant was never afforded any opportunity to respond.

29.  For these reasons I am of the view that Grounds (1) – (5) but not Ground (6) are reasonably arguable that the Board had erred in law and in fact in its finding that the filing of the Notice of Appeal was late.

Ground (7): Failure to take into account the merits of the appeal   

30.  This ground is based on section 37ZT(2)(b) of the Ordinance which requires the Board to take account of any other relevant matters of fact within its knowledge in deciding whether by reason of special circumstances that it would be unjust not to allow the late filing of the notice of appeal, of which the Court of Appeal has held that they must include the merits of the appeal, as it explained in Re Qasim Ali [2019] HKCA 430 as follows:

“23. … as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, 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.”   

31.  In the present case, as noted above the facts of the Applicant’s case as set out in his grounds of Appeal/Petition in section 2 of his Notice of Appeal as well as the attached copy of the Further Decision were clearly relevant matters of fact within the knowledge of the Board, but despite having directed itself to the principles stated in Begum([22] & [33]), there is no indication of any consideration of those facts or of the merits of the Applicant’s appeal in the Board’s decision.  As such I am of the view that it is reasonably arguable that the Board failed to take into account the merits of the Applicant’s appeal in deciding whether to allow its late filing.

Ground (8): Appeal decision and refusal to reconsider constitute fettering of discretion

32.  Under this ground the Applicant argues that even where a notice of appeal is considered to have been filed out of time, the Board has wide powers to allow late filing on special circumstances and the principle of just decision-making, and given such a decision is of momentous importance being determinative of his non-refoulement protection claim, the Board must not be exempt from the requisite high standards of fairness, and where a core material fact is not accepted on paper, fairness demands that the Applicant be notified of the Board’s concerns and where required be given an opportunity to provide further evidence in support of his reasons, and therefore in arriving at its decision without reviewing matters of fact readily available and in its blanket refusal to reconsider, the Board has in all practical manifestation adopted an “implacable and unwavering rule of policy” such that its discretion was unlawfully fettered.

33.  For the same reasons given above, I am of the view that it is reasonably arguable that as the Board failed to consider all the relevant matters of fact within its knowledge including those readily available upon further enquiry with the Applicant and/or the Director when it refused the late filing of the Applicant’s Notice of Appeal that its discretion was unlawfully fettered.

Decision

34.  In the premises and for the reasons given, I accordingly grant leave to the Applicant to apply for judicial review of the Board’s decision on his proposed Grounds (1) – (5), (7) and (8), for which he shall within 14 days issue an originating summons in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party, with costs in the cause and that the Applicant’s own costs to be taxed on Legal Aid Regulations.     

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