MUKUNGU COLLINS KITYO v. TORTURE CLAIMS APPEAL BOARD

HCAL 834/2018

[2019] HKCFI 2354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 834 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

1.     Extension of time be granted to the Applicant’s intended application; and

2.     Leave be granted to the Applicant to apply for judicial review of the Torture Claims Appeal Board (“the Board”)’s decision dated 8 December 2017 on the grounds that:

i. the Board failed to take into account adequately or at all those relevant matters of facts within its knowledge as stated above in its refusal to allow the late filing of the Applicant’s Notice of Appeal; and

ii.     the Board’s reason for the refusal is unreasonable in the Wednesbury sense in light of the circumstances of this case.

It is further directed that:

3.     The Applicant shall within 14 days of this decision file and issue the originating summons, and to serve a copy together with all the relevant documents on the Board as respondent and the Director of Immigration (“the Director”) as interested party.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Uganda who arrived in Hong Kong on 28 April 2012 with permission to remain as a visitor up to 31 May 2012 when he did not depart and instead overstayed and was arrested by police on 16 November 2012.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Uganda he would be harmed or killed by the Ugandan police for participating in protests against the government and that he would not be able to access to proper medical treatment for his HIV condition.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Wakiso, Central Region, Uganda, and later moved to Makindye, Kampala where he ran an auto-parts trading business.

3.  In 2011 he joined a trader committee to make representations to the government over various grievances faced by traders and businessmen, but after one particular violent protest participated by the Applicant and hundreds of fellow traders in Katwe Town, Kampala when the police fired teargas and rubber bullets at the crowd and struck the protesters with batons that many were injured including the Applicant who were brought to the hospital for treatments when he was found to be HIV positive.

4.  After his discharge from hospital, the Applicant feared that he would be arrested by the police who were then making massive arrests of the protesters, and fled to hide in a friend’s place in Kampala, but when he heard that the police were specifically targeting members of the trader committee for organizing the protest and had already arrested several of them and were looking to arrest the rest of the committee members, the Applicant felt that it was no longer safe to remain in Uganda and on 28 April 2012 he departed for Hong Kong, and after his arrest by the police he raised his non-refoulement claim for protection,for which he completed a Non-refoulement Claim Form on 22 June 2016 and later attendedscreening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 27 April 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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.  On 16 May 2017 the Torture Claims Appeal Board (“the Board”) received the Applicant’s Notice of Appeal against the Director’s decision, but as the Board found that it was filed outside of the 14-day period within which the Applicant was required to do by section 37ZS(1) of Part VIIC of the Immigration Ordinance, and that he had failed to give any reason for his delay, the Board by a decision dated 8 December 2017 refused to allow the late filing of his Notice of Appeal.

7.  On 14 May 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 for his intended challenge:

 (1) that the Board erred in failing to maintain high standards of fairness by not holding an oral hearing to allow the Applicant an opportunity to put forward his case in his appeal;

 (2) that the Board erred in approach the Applicant’s appeal which is a rehearing by simply trying to see if it could find fault with the decision of the immigration officer and excused the Director from attending the appeal hearing so that no question could be raised of the Director’s decision;

 (3) that the Board failed to consider the relevant COI as to the conditions of the Applicant’s home country which was necessary in assessing his claim; and

 (4) that the Board failed to take into consideration in its decision that the Applicant was not legally represented and with insufficient legal knowledge about the appeal process.

8.  The Applicant was however again late with his intended application, as Order 53,rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

9.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 8 March 2018, he was therefore more than two months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

10.  In the Applicant’s case, a delay of more than two months cannot be said to be insignificant or insubstantial, for which he explained at the hearing that he was not aware of the time limitation for the application until later when he was informed by an immigration officer.  Ignorance of the law of course can never be a valid explanation for its non-compliance, and as such I do not accept that he has provided any good reason for his delay.

11.  As for the merits of his intended application, most of the grounds proposed by the Applicant are just broad and vague assertions with a few key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board had erred in its decision, while his complaint that the Board failed to apply high standards of fairness by not holding an oral hearing for his application is clearly not applicable, as section 37ZT of the Ordinance provides that the Board must decide whether to allow the late filing of the notice of appeal as a preliminary decision without a hearing as follows:

“ (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, theBoard 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.”

12.  As for the Applicant’s complaint under Ground (4) that the Board failed to take into consideration that he was not legally represented and without sufficient legal knowledge of the appeal process, it would be relevant to first note what the Board stated in its decision about his delay in filing his notice of appeal as follows:

“ 6. The letter rejecting the Applicant’s claim for non-refoulement protection was sent to the Applicant in care-of by the Duty Lawyer Service and was dated 27 April 2017 in which the Director drew the Applicant’s attention to his right to appeal his decision within 14 days from the date of the decision and enclosed in his letter the appropriate notice of appeal.

7. The time by which the Applicant needed to file his notice of appeal expired on 12 May 2017 but it was not until 16 May 2017 that the Board received the Applicant’s notice.

8. Section 5 of the notice has been left blank by the Applicant thereby advancing no reasons for the late filing of the notice. Furthermore, in view of the high standard of fairness to be afforded to the Applicant, on 16 November 2017, this Board caused a letter to be sent to the Applicant reminding him of his duty to complete section 5 of the Notice of Appeal/Petition, requiring him to return the completed form by 23 November 2017. No reply has been forthcoming from the Applicant.

9. The statutory regime for late filing of notice of appeal is a strict one. It is the duty of a claimant under the Ordinance to establish his or her claim and to that end he or she must comply with time limits: Section 37ZA(1)(b) of the Ordinance.

10. If the time limit for filing an appeal is not complied with, the claimant is obliged to give reasons for non-compliance, accompanied by any documentary evidence in support of those reasons. The Board must,taking into account only those reasons and supporting documentary evidence if any, decide whether or not to allow late filing. This will only be allowed where the Board is satisfied that, by reason of special circumstances, it would be unjust not to do so.

11. In the present case no reasons have been put forward by the Applicant for the late filing of the notice.

12. There are no other relevant matters of fact within my knowledge amounting to special circumstances which would make it unjust not to allowthe late filing of the Applicant’s notice of appeal.”

13.  While there was indeed no statement of reasons given by the Applicant for his failure to file his notice of appeal within the stipulated period, for the Board to make a preliminary decision whether to allow his late filing, it is required by section 37ZT(2)(b) of the Ordinance to take account of any other relevant matters of fact within the knowledge of the Board, which must in my view include the following facts and circumstances but which the Board did not appear to have done so or done so properly or adequately:

 (a) a delay of four days as found by the Board in the Applicant’s case cannot be said to be serious or significant;

 (b) any possible delay caused in the mail when the Director’s decision was sent to the Applicant care-of his DLS and when the Applicant’s Notice of Appeal was sent to the Board may have or could have contributed to his delay;

 (c) that the Applicant dated his Notice of Appeal as 11 May 2017 which would then put it within time of the 14-day period and may go to explain why no application for late filing or statement of reasons for the delay were made in his Notice of Appeal;

 (d) that the Applicant was at one time being detained at the Lai Chi Kok Reception Centre and that by the time of his appeal he was no longer represented by DLS; and

 (e) the merits if any of the Applicant’s appeal. 

14.  As held by the Court of Appeal in Re Qasim Ali CACV 547/2018, [2019] HKCA 430, a delay of eight days in that case cannot on any view be regarded as serious or significant,and that even if there is a serious or significant breach for which no good reason is given,the Board should still proceed to evaluate all the circumstances of the case that it knows of,as Lisa Wong J stated in the judgment as follows:

“ 23. Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, 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 forjudicial review is reasonably arguable, meeting the threshold for leave to begranted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

15.  In the Applicant’s case, and for the reasons given, I am of the view that it is reasonably arguable that (i) the Board failed to take into account adequately or at all those relevant matters of facts within its knowledge as stated above in its refusal to allow the late filing of the Applicant’s Notice of Appeal, and (ii) that its reason for the refusal is unreasonable in the Wednesbury sense in light of the circumstances of this case.

16.  In the premises and accordingly, I extend time for the Applicant’s intended application and grant leave for him to apply for judicial review of the Board’s decision on the grounds stated above, and that he shall within 14 days of this decision file and issue the originating summons, and to serve a copy together with all the relevant documents on the Board as respondent and the Director as interested party.

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