HASAN MOHAMMAD FORHAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2780/2018

[2021] HKCFI 2127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2780 of 2018

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 the Applicant being absent in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 30 November 2018 (the “Decision”) refusing his late filing of notice of appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 26 September 2017 refusing his application for non-refoulement protection (the “Notice”).

2.  The Applicant had asked for an oral hearing if leave is not granted on paper.  Despite two hearing on 21 April and 12 May 2021 have been scheduled to hear his application, he did not turn up.  On both occasions, attempts were made to contact him on his mobile phone, but no one answered.  The notice in respect of the hearing on 21 April 2021 was returned with an indication that delivery was refused.  The Court proceeded to determine the application in his absence.

The law – late filing of notice of appeal

3.  The appellate regime relating to non-refoulement claims under the Immigration Ordinance permits a claimant to appeal to the Board against the decision of the Director refusing his claim within 14 days of the decision of the Director: see section 37ZS. Section 37ZT sets out the procedures for dealing with a notice of appeal filed after the expiry of the 14-day period.  This section provides as follows:

“37ZT. 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 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 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.”

4.  It is obligatory for the claimant to furnish a statement of reasons for the late filing and to provide documentary evidence wherever available.  It is mandatory for the Board to decide as a preliminary decision without a hearing whether to allow the late filing.  The Board shall only make its decision on the basis of the statement of reasons and accompanying documents furnished by the claimant and the relevant matters of fact within the Board’s own knowledge.  The test is whether there are special circumstances which would make it unjust not to allow the late filing of the notice of appeal.  To answer that question, the court adopts the three stage approach laid down in The Secretary of State for the Home Department v Begum[1].  The Board has to consider (i) seriousness of the breach; (ii) reasons for the breach; and (iii) an evaluation whether in all the circumstances of the case known to the Board that it would be unjust not to grant the extension of time.  It is certainly unjust not to grant extension of time to enable a meritorious appeal to proceed.  The converse is also true.  It is not unjust to refuse an extension so as to allow an unmeritorious appeal to proceed.  These procedures are also set out in the Petition Guide.

The background

5.  The Applicant is a Bangladeshi national.  On 17 August 2014, he was arrested by the police for illegally remaining in Hong Kong.  He was referred to the Immigration Department.  He claimed to have departed from Bangladesh for Guangzhou on 15 August 2014 and then entered Hong Kong illegally on 17 August 2014 when he was arrested.  On 20 August 2014, he sought non-refoulement protection by written representation, claiming that he would be at risk of being harmed or killed by people of the Awami League (“AL”) because of his affiliation with the Bangladesh Nationalist Party (“BNP”), if returned to Bangladesh.

6.  In due course, his non-refoulement claims were assessed on all three applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4]. By a Notice of Decision dated 24 June 2016, the Director rejected his claims (the “Notice”). 

7.  On 28 July 2016, he filed a notice of appeal to the Board against the decision in the Notice, but the notice of appeal was filed late by 17 days.  The notice of appeal was accompanied by an application for late filing.  The reason for the late filing was the Applicant’s fear of being harmed if returned to Bangladesh.  On 31 March 2017, the Board refused the late application.  It gave full reasons but did not consider the merit of the claims.  The Applicant did not pursue the appeal further.  Thus, the decision of the Director in the Notice in rejecting his claim based on Torture Risk, BOR 3 Risk and Persecution Risk is final.

8.  On 12 June 2017, the Director invited the Applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claims, including a claim based on BOR 2 Risk[5] by 26 June 2017.  The Applicant did not respond.  By a Notice of Further Decision dated 26 September 2017, the Director rejected his claims based on BOR 2 Risk ground (the “Further Notice”).

9.  On 19 October 2017, the Applicant filed a notice of appeal against the Further Notice.  It should have been filed by 12 October 2017.  It was 7 days late.  The notice of appeal included an application for late filing.  The reason given for the late filing was:

“Just (illegible) give my paper. 19/10/17”

The Board considered there is no good reason for allowing the late filing.  It then considered the merits of the Applicant’s claims and found there are no special circumstances, which would make it unjust not to allow the late filing.  It therefore refused the application.  The Applicant now seeks leave to apply for judicial review of that Decision.

Grounds for judicial review

10.  The Applicant advanced the following two grounds of appeal in his notice of application for leave to apply for judicial review (Form 86):

(1) the Board was in breach of procedural fairness in the following respects:

(i) the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(ii) the Board acted in a procedurally unfair manner in dealing with the appeal;

(iii) the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(iv) the Board failed to meet the greater care and duty owed to a self-represented claimant; and

(2) the Board relied on source of news which is not officially recognized or is hearsay or outdated.

11.  These grounds are very familiar to the Court.  Obviously, they are cloned from other applications seeking to review the Board’s decision affirming the Director’s decision in his notice of decision refusing the claimant’s claim for non-refoulement protection.  Ground (2) has no relevance in a review of the Board’s decision in refusing an application for late filing because the Board did not have to take into consideration any such news or country of origin information in its decision. The Court could only focus on complaint about procedural unfairness.

Discussion

12.  In the opinion of the Court, a reasonable guess of what the Applicant meant in his reasons for late filing is that he was just given the Further Notice on 19 October 2017.  But he gave no account of the circumstances and why he came to receive the Further Notice on 19 October 2017 and supporting evidence to make his assertion credible.  It is just a bare assertion.  The Court agreed with the Board’s finding in paragraph 15 of its Decision that the Applicant gave no coherent explanation for the delay and there is no good reason for allowing the late filing.

13.  In paragraphs 16 to 26, the Board considered the merits of the claim.  In compliance with section 37ZT(2)(b), the Board recalled its knowledge of the merits of the Applicant’s case.  The adjudicator of the Board concerned had not made any decision on the merits of the Applicant’s claims.  It therefore scrutinised the Director’s Notice dated 24 June 2016 and the Applicant’s notice of appeal to the Board in order to acquire knowledge of what the Applicant’s case was and how his claims were dealt with and particularly whether that case included a claim of fear of unlawful deprivation of life which is relevant to his claim under BOR 2. The Board analysed the Applicant’s case and understood his fears and risks.  It noted from the Notice that the Director refused the Applicant’s original claim, finding that there were no substantial grounds for believing that the AL people in his area would ill-treat or kill the Applicant.  Thus the issue of risk of unlawful deprivation of life under BOR2 had been considered along with the other three risks under the USM.  The Board noted that the Applicant added nothing new to the facts as already considered by the Director, or is anything new added since then in connection with the Further Decision on BOR 2 risk, or the late appeal against that.  The Board found nothing obviously wrong with the Director’s decisions in the two Notices and concluded there is nothing to indicate that indulgence in the form of extension of time should be granted. The Court also concurred with that decision.

14.  The Board noted that the Applicant’s claims, whether the original claims or the BOR 2 claim, have not had any full consideration by the Board.  However, as there is no provision in the law for re-opening of an appeal once an application for late filing is refused, so the original claims cannot now be considered.  His only chance of consideration of any claim is by allowing the late filing so that his BOR 2 appeal can be considered.  The Board took pains to consider whether this could constitute special circumstances by reason of which it would be unjust not to allow the late filing, but considered it would not. 

15.  This Court could not agree with that more.  The Applicant was late twice.  On both occasions, he could offer no reasons for the failure to comply with deadline and no special circumstances to explain that failure.  He demonstrated no seriousness in complying with deadlines.  That only reflects the appeals are not anything of importance to him and/or that he understands he does not have good grounds of appeal.  He only had himself to blame. 

16.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claims; risk of harm; availability of state protection and viability of internal relocation; and in the case of the filing of a notice of appeal whether it was late, whether there was a valid explanation for the late filing and whether there were special circumstances which would make it unjust not to allow the late filing.  The court will scrutinise the Board’s Decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6]. 

17.  The Board followed the procedure set out in section 37ZT and the Petition Guide to the letter.  Even though the Board did not mention Begum, it effectively adopted the three-stage approach in that case.  Given the absence of information from the Applicant and other relevant matters of fact known to the Board, the Board could only draw as the only reasonable conclusion that there were no special circumstances which would make it unjust not to allow the late filing of the notice of appeal.  The Board committed no error of law.  The Board concluded that there were no special circumstances which would make it unjust not to allow the late filing.  The conclusion is a finding of fact which is both justified and exclusively within the province of the Board as the tribunal of fact to make.  Having rigorously examined the Board’s Decision and the papers, the Court was satisfied that the Decision met the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  There was no procedural unfairness.  The Board adhered to a very high standard of fairness.  The Applicant’s intended judicial review has no realistic prospect of success.  Accordingly, leave to apply for judicial review was 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

[1]  (2016) EWCA Civ 122

[2]  Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3]  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4]  Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5]  Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6]  [2018] HKCA 524 at para14(1)