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

HCAL 2761/2018

[2021] HKCFI 2675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2761 of 2018

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 absent in open court;

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decisions both dated 26 April 2018 [10 April 2018] of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”). Although the application is late, in view of the fact that leave should be granted for the applicant to apply for judicial review, I grant him leave to apply out of time. The reasons are set out below.

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

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

The applicant

4.  The applicant is a citizen of India. He attempted to enter Hong Kong from Mainland China. He was refused permission to land and he lodged non-refoulement claim.

5.  He claimed that if refouled, he would be harmed or killed by Gurbachan Singh and his people because of the disputes relating to the election of the village head between Gurbachan and his uncle.  There were fights between two camps of people. The dispute was compromised. But Gurbachan’s people had taken the matter further by making false claims to police against him.  He was arrested and tortured by the police. Details of the story are set out in paragraph 6 of the Director’s Decision as described below.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

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

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

7.  By Notice of Decision dated 7 May 2015 (the “Director’s Decision”) and Notice of Further Decision dated 18 November 2016 (the “Director’s Further Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there were no substantial grounds for believing the he would be subjected to the risks above if he returned to India [12]; that state protection would be available to him [14] and that internal relocation was an option open to him [15].

The Board’s Decisions

8.  The applicant appealed to the Board against the Director’s Decision. However, his application for the appeal was late. The Board found that the deadline for him to file the Notice of Appeal was 23 May 2015. He filed his Notice of Appeal on 5 July 2017. The Board found that he was about 2 years and 6 weeks late.

9.  He had also appealed to the Board against the Director’s Further Decision. He filed his Notice of Appeal on the same day, i.e. 5 July 2017.  The Board found that he was about 7 months late.

10.  In section 5 of the Notice of Appeal, the applicant had given his explanation for being late.  He said that he was informed by the case officer that the Director had rejected his claim and he could appeal.  However, he was sent to the Tai Lam Prison. He served his term of imprisonment and was sent back to the Immigration Department detention centre, where he made his BOR 2 risk claim.  He was given bail.  He jumped bail and was recaptured and detained in the Immigration Department’s detention centre.  The case officer informed him that he could appeal. He then filed the Notice of Appeal.

11.  The Board applied section 37ZT of the Ordinance to his case and considered the reasons given by him. The Board did not accept his explanation because the Director’s Decisions had informed him of the time for filing the Notice of Appeal and those reasons he had given did not prevent him from filing the Notice of Appeal. Also, the delay was significant and serious.

12.  The Board further considered the case of the United Kingdom, The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 (03 March 2016). The Court of Appeal in this case considered three stages for the application:

(1)  seriousness or significance of the delay;

(2)  any good explanation for the delay; and

(3)  all the circumstances of the case, applying the two factors in CPR rule 3.9, i.e. (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders.

13.  Having considered the above factors, the Board was not satisfied that there were special circumstances pursuant to section 37ZT(3) of the Ordinance to extend time for the applicant to file his Notices of appeal against the Director’s Decisions.

Application for leave to apply for judicial review

14.  The applicant filed Form 86 on 5 December 2018 to apply for leave to apply for judicial review of the Board’s Decisions.

15.  In his affirmation in support of his application, he said:

“… …I am NOT satisfy [satisfied] with the Torture Claims Appeal /Petition Board Office, which is related to the Non-refoulement claims under BOR2 Article 3.”

DISCUSSION

16.  The The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 held at §§43-45:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, Ex parte Doody [1994] 1 AC 531 at 560 D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45.  It is for the Secretary to make such a determination.  The courts should not usurp that official’s responsibility.  But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met.  R v Home Secretary, Ex parte Bugdaycay [1987] 1 AC 514 at 531 E-G.  If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

17.  There are three observations in this case.

(1)  First, the delay for the Director’s Decision is 2 years and 6 weeks; for the Director’s Further Decision, 7 months. Even though one may argue that since the Director had to consider the BOR 2 risk, based upon the facts of his first Decision, the time should be counted from his Further Decision. In any event, 7 months’ late is serious delay, which required satisfactory explanation from the applicant.

(2)  Second, CPR rule 3.9 of the UK practice does not apply in Hong Kong. CPR and Civil Justice Reform in Hong Kong are not identical, at least the objectives, one being overriding and the other underlying. More importantly, Order 1A, rule 2(2) provides:

“In giving effect to the underlying objectives of these rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

It seems that the Board had not made a distinction of the CPR and the CJR before it decided to apply CPR, rule 3.9 to this case.

(3)  Third, the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“17.   Where a notice of appeal is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

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.”

18.  By “the merits of the applicant’s case”, the Court of Appeal is obviously referring to the facts as alleged by the applicant in support of his claim and the circumstances relating to his claim. All these are in the Director’s Decisions, which should have been given to the Board by the Director under section 9(1)(a) of Schedule 1A of the Ordinance:

“Director to provide facts

(1) The Director must, as soon as practicable after receiving a copy of a notice of appeal served under section 8 of this Schedule, provide to the Appeal Board and the person who has lodged the appeal—

(a) if the decision being appealed against is a decision under section 37ZI(1)(b) rejecting a torture claim—

(i) a copy of the completed torture claim form relating to the torture claim in respect of which the decision was made; and

(ii)  a copy of the written record of any interview of the claimant conducted by an immigration officer in considering the torture claim; …”

19.  I find that it is at least arguable that the applicant may succeed in his application as the Board had not considered the merits of the applicant’s case.

CONCLUSION

20.  I therefore grant leave to the applicant to apply for judicial review. The applicant should take out the application in accordance with Order 53 rule 5 of the Rules of the High Court within the time as provided under the Ordinance.

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