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

HCAL 1947/2019

[2023] HKCFI 1231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1947 of 2019

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 oral submissions by the Applicant in open court;

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted;

2.  Extension of time to file the Form 86 be refused; and

3.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 July 2019 for leave to apply for judicial review of a decision of the Director of Immigration (the “Director”) dated 14 March 2019.  Upon enquiries with the authorities, it was discovered that the Director had not made any decision bearing that date in respect of the Applicant; but the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) had made a decision bearing that date (the “Decision”) refusing his late filing of a Notice of Appeal (“NOA”) against the decision of the Director in his Notice of Decision dated 24 July 2017 (the “Notice”) refusing his application for non-refoulement protection.  It is clear that the Applicant’s intention is to seek leave to apply for judicial review of that Decision.  At the hearing, he confirmed that was indeed his intention.  Accordingly, leave was granted to amend the Form 86 substituting the Board for the Director as the proposed respondent and the Board’s Decision as the decision in respect of which relief is sought (the “leave application”).

2.  By 10 July 2019, the leave application was filed almost four months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it is twenty-seven days out of time.  Leave to file the leave application out of time is required.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time:

(1)  length of the delay;

(2)  explanation for the delay;

(3)  merits of the substantive application;

(4)  prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and

(5)  whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. 

3.  Merits is usually a very important factor.  Where the delay is not very substantial, merits is usually the determinant factor.  The delay of almost a month albeit in the context of a time limit of three months is not insubstantial, the Applicant had not given any explanation for the delay in filing the leave application.  As the Court considered that in the circumstances of this case, merits is likely to be the determinant factor, this Court proceeded to assess the prospect of success of the proposed judicial review first; and was prepared to condone his delay if the proposed judicial review has good prospect of success.

The background

4.  The Applicant is an Indian national, now aged 44.  He first entered Hong Kong as a visitor on 25 May 2007.  On 8 February 2009, he was arrested for overstaying.  On 20 March 2009 he raised a torture claim under the Convention Against Torture and Other Cruel or Degrading Treatment or Punishment (the “Torture Claim”).  In the years that followed, he repeatedly tried to withdraw his Torture Claim and then to re-open it again. Ultimately, upon implementation of the Unified Screening Mechanism (the “USM”), his non-refoulement claim was assessed by the Director on all four applicable grounds, namely: Torture Risk^[2]; BOR 3 Risk^[3]; Persecution Risk^[4]; and BOR 2 Risk^[5]. His claim was dismissed by the Director’s Notice.

5.  On 18 May 2018, more than nine and half months later, he attempted to file a NOA against the decision of the Director in the Notice.  According to section 37ZT of the Immigration Ordinance, it was filed nine months and two days out of time.  The Board was not satisfied with his explanation for the delay he gave, and issued its Decision on 14 March 2019 refusing his late filing of the NOA.   

The Applicant’s explanation for the late filing of the NOA and the Board’s finding of fact

6.  Section 37ZT(1)(a) mandates a late applicant to state his reasons for the late filing in Section 5 of the NOA and provide supporting documentary evidence.  The reason the Applicant gave for the late filing is that he only received the appeal form, ie the blank NOA (the “appeal form”) on 15 May 2018 and he did not have any immigration officer’s documents relating to the non-refoulement claims, by which he must mean the Director’s Notice of Decision dated 24 July 2017.  He did not give a full account of how these events occurred, particularly why all out of the blue he received the appeal form more than nine months after the Notice was issued. 

7.  As it transpired and for reasons which the Applicant did not disclose to the Board, he had in fact written a letter to the Board dated 9 May 2018 asserting that he had not appealed the Notice because he had been detained in Castle Peak Bay Immigration Centre since 5 May 2018 and asked for a copy of the appeal form.  He wrote:

“To obtain the petition form I am HARPAL SINGH who is currently in the detention centre since from admission dated on 5^th May2018. Therefore I have never lodge against the decision of the Immigration officer which is related to the Non-Refoulement claims. Hereby, I humbly request to your office that I want to obtain the petition form so, that I can provide the statement reason(s) why I am NOT satisfy with the decision. Thank you for your attention.”

His letter completes the jigsaw and explains why he received the appeal form on 15 May 2018.  Impliedly, it would be his case that in fact he never received the Notice and he only came to know about the Director’s Notice refusing his application for non-refuolement protection when he was detained in Castle Peak Bay Immigration Centre.  Then, he wrote to the Board and asked for a copy of the appeal form for him to complete and appeal. 

8.  The additional surrounding circumstances as discovered by the Board are as follows.  The Applicant was legally represented by the publicly funded Duty Lawyer Service (“DLS”) until 28 July 2017 when the DLS ceased to act for him for want of further instruction from him.  The Notice was served on the Applicant via the DLS on 24 July 2017 before DLS ceased acting for him.  It was served again on him by post to his last reported address on 31 July 2017.  It was not returned through the Dead Letter Service. Therefore, it was deemed to have been duly served on him.  The final paragraph of the Notice contained a warning that if the Applicant is aggrieved by the decision in the Notice, he must file his NOA within fourteen days of the date of the Notice.  He was also given the address for filing the NOA and a copy of the appeal form.

9.  In the course of his submission during the oral hearing, the Applicant asserted that the explanation given in Section 5 of the NOA was written by an immigration officer and he had no knowledge of the content which had not been interpreted to him.  He just signed the NOA as he was told.  The Applicant had no other explanation for the late filing other than that written in Section 5 of the NOA.  If it is expunged as not having been given by him, he would have no explanation at all.  His application for late filing would fail all the more.  It is inherently improbable that an immigration officer would concoct an explanation to enable him to appeal the decision of the Director.  His assertion is just a concoction at the hearing.  This new assertion was never before the Board.

The reasons of the Board’s Decision

10.  The Board directed its mind to the relevant provisions in the Immigration Ordinance, namely:

(1)  Section 37ZA(1)(b) which imposes a duty on the appellant to establish his claim to protection and to that end he must comply with the time limit;

(2)  Section 37ZS(1) which provides that a person who wishes to appeal a decision of the Director rejecting his non-refoulement claim must file with the Board a NOA within 14 days after notice of the decision has been served on him, unless the late filing is allowed by the Board;

(3)  Section 37ZT which provides that if a NOA is filed late, it must include an application for late filing, which must include a statement of reasons for failing to file on time and be accompanied by documentary evidence in support; and

(4)  Section 37ZT also provides that the Board must decide as a preliminary decision without a hearing whether the application for late filing will be allowed; and in so deciding, the Board may only take into account the matters listed in Section 37ZT(2)(a) and (b), ie the statement of reasons for late filing, accompanying documentary evidence and any other relevant matter of fact within the knowledge of the Board.

11.  In considering his explanation for the delay, the Board adopted the three stage approach in The Secretary of State for the Home Department v Begum[6]. Under the first stage, the Board found a delay of nine months and two days is a serious and significant failure to comply with the rules.  This finding could not have been erred.

12.  Under the second stage, the Board considered the Applicant’s explanation a bare assertion and did not explain why he had not received the Notice.  By reasons of the facts as mentioned in Paragraph 7. it found the Applicant had failed to explain why he had not received the Notice within time to enable him to file the NOA.  It therefore found the Applicant had not given an acceptable explanation why he submitted the appeal form nine months and two days out of time.  Thus, he had no good reason for the breach. 

13.  Under the third stage, the Board evaluated all the circumstances in this case.  It could find no other matters known or revealed to the Board by the factual basis of the Applicant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing.  It was on that basis that the Board came to the conclusion that it would not be unjust not to allow the late filing and hence refused his late filing.

The legal principles applicable to judicial review

14.  The role of the court in judicial review is not to re-assess the non-refoulement claims 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 claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize 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[7].

Grounds for judicial review

15.  The Applicant’s grounds for judicial review as stated in the Form 86 and his supporting affirmation is that he is not satisfied with the Decision of the Board and that his life is in danger in India.  He asked the Court to consider his case. He had not directed his mind towards explaining his late filing of the appeal form and the reasoning of the Board’s Decision.  After these were explained to him, he offered the following further explanation for the delay.  He said that prior to his detention in Castle Peak Immigration Centre, he had been detained in prison custody for about six to seven months.  Hence, he had not received the Notice.  Even accepting this is true, it could not constitute a reasonable explanation for the delay.  He was first detained in Castle Peak Bay Immigration Centre on 5 May 2018.  Working backwards from that date, he would have commenced his detention in prison in November or December 2017.  That still could not explain why he had not received the Notice sent to his residential address in July 2017.

16.  The essence of the Applicant’s ground of judicial review is that he disagreed with the Director’s finding that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to India.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.  More importantly, this ground does not address the late filing of the NOA which is what the Decision is about.

Conclusion

17.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the relevant legal provisions in the Immigration Ordinance, the law and key legal principles relating to the late filing of Notice of Appeal against the decision of the Director in his Notice of Decision; correctly identified the issues and observed a very high standard of fairness.  The Board set out the relevant facts, which are mainly based on the Applicant’s letter and his explanation for late filing in the NOA which are hardly controvertible.  It was on that basis that the Board found that his late filing was a serious and significant failure to comply with the rules, that he had failed to give reasonable explanation for his late filing, and that there are no special circumstances which might make it unjust not to allow the late filing.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

18.  For the above reasons, extension of time for filing the Form 86 and the application for leave to apply for judicial review are 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]   CACV 63/2015 (unreported) 3 November 2015

[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] (2016) ECWA Civ 122 (03 March 2016)

[7] [2018] HKCA 524 at [14(1)]