YA v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PEITION OFFICE

HCAL 1026/2017

[2018] HKCFI 2445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1026 OF 2017

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J U D G M E N T

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1.  With leave granted by this Court on 25 May 2018, this is an application for judicial review of two decisions of the Torture Claims Appeal Board (“the Board”) involving the applicant’s non-refoulement claim for protection from return to Algeria, namely:

(1) the decision made on 17 May 2017 to reject the unsigned Notice of Appeal/Petition submitted on behalf of the applicant to appeal against the decision of the Director of Immigration (“the Director”) rejecting his non-refoulement claim, and to treat the Notice as a nullity (“First Decision”); and

(2) the decision made on 8 September 2017 to refuse the applicant’s application for late filing of his Notice of Appeal (“Second Decision”).

2.  I do not propose to recite the backgrounds in details of the applicant leading to his non-refoulement claim which can be found in my leave decision of 25 May 2018 except the following brief relevant part.

3.  The applicant was born and raised as a Muslim in Algeria, but when he stopped following the religion of Islam and was considering converting to Christianity, he was abducted by some Muslim men and was tortured by them for abandoning Islam for several weeks until eventually when he managed to make his escape and went into hiding, and when he was told by his family that those men were looking to harm and kill him, he left Algeria for Hong Kong in November 2012 and lodged his non-refoulement claim with the Immigration Department.

4.  On 2 May 2017 his claim was rejected by the Director of Immigration (“the Director”) on all applicable grounds including torture risk, BOR 2, BOR 3 and persecution risks.  At that time he was being held in the Castle Peak Bay Immigration Centre (“CIC”).

5.  On 16 May 2017 the applicant’s assigned lawyer filed with the Board the unsigned Notice of Appeal attached with a letter of explanation that the applicant had been taken to the hospital and was therefore unable to sign the Notice which was filed to protect his position.

6.  By a letter dated 17 May 2017 the Board informed the applicant’s lawyer that as the Notice of Appeal was not signed by the applicant, it would be treated as a nullity and would not be processed further.  In the letter the Board cited section 37ZS of the Immigration Ordinance, Cap 115 and gave the applicant up to 19 May 2017 to file his Notice of Appeal in compliance with the provisions of section 37ZS. [BD:112]

7.  On 6 July 2017 the applicant filed his Notice of Appeal with an application for its late filing with the following statement of reasons:

(a) On 15 May 2017 the applicant was taken to the Tuen Mun Hospital where he was admitted at 14:08 hours.  He was discharged from the Tuen Mun Hospital on 17 May 2017 at 19:26 hours and transferred to the Kowloon Hospital.

(b) The applicant has all along been detained at CIC.  An appointment had been arranged by the DLS-CAT for 16 May 2017 for him to see his assigned lawyer, and to confirm the draft Grounds of Appeal.  Due to his hospitalization this could not be kept.

(c) The unsigned Notice of Appeal was lodged with the TCAB but was treated as a nullity;

(d) On 1 June 2017, having confirmed the location of the applicant, the DLS-CAT staff and the assigned lawyer saw the applicant at the Kowloon Hospital and the Notice and Grounds were confirmed and signed.

(e) An application for the records of the two hospitals was then made, to support the present application for late filing of the Notice.  The records from the Tuen Mun Hospital have now been obtained.  The records from the Kowloon Hospital are still pending but expected to be available shortly.

(f) The applicant has been threatened with deportation from Hong Kong and unless his appeal is lodged there is no legal impediment preventing the applicant from being deported back to his home country.

(g) The Notice of Appeal was lodged at the earliest available opportunity.

8.  In support of his application the applicant also attached copies of the legal visit letter dated 16 May 2017, letters from DLS-CAT to Tuen Mun and Kowloon Hospitals, and records from Tuen Mun Hospital.

9.  On 8 September 2017 the Board refused the applicant’s application for late filing of his Notice of Appeal upon finding that he had not promptly dealt with the matter, that his delay of 48 days was considerable, and that his reasons for such delay not acceptable.

10.  On 7 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of both decisions of the Board, for which this Court on 25 May 2018 extended time for his application regarding the First Decision, and granted leave for him to apply for judicial review of both decisions, with the substantive hearing now before me, for which both the Board as the respondent and the Director as the interested party have written to indicate their neutral stance and were granted leave to be excused from the hearing.

11.  I now turn to consider the applicant’s grounds for challenging the Board’s decisions, starting with its first.    

First Decision

12.  This decision is challenged on the basis that the Board’s determination that the Notice of Appeal was a nullity was without legal basis, that the failure to sign the Notice was at most an irregularity which could be remedied at a later date, and that in the circumstances of the applicant the Board should not have rejected the Notice.

13.  Section 37ZS provides for the filing of the Notice of Appeal as follows:

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

(2) A notice of appeal must be—

(a) in a form specified by the Chairperson of the Appeal Board; and

(b) accompanied by a copy of the notice of the decision being appealed against.”

14.  The specified form of the Notice of Appeal is Appendix A to the Principles, Procedures and Practice Directions of the Torture Claims Appeal Board (Fifth Edition, 12 September 2016), and for Petitions under the Administrative Non-refoulement Claims Petition Scheme, the same formis to be used: The Practice and Procedural Guide of the Administrative Non- refoulement Claims Petition Scheme (Fourth Edition, 12 September 2016).

15.  The Notice of Appeal filed on behalf of the applicant on 16 May 2017 [BD:83] was in the prescribed form completed in all aspects by his assigned lawyer except for the applicant’s signature, and was attached the grounds of appeal also prepared by his lawyer and filed by the Duty Lawyer Service.

16.  Mr Barnes submits for the applicant that the Notice of Appeal was therefore filed in compliance with section 37ZS within the 14-day period, and the Board was therefore required to proceed to hear and determine the appeal, and its rejection amounted to a refusal to exercise its statutory duty to hear and determine the merits of the appeal, and hence its decision to decline jurisdiction was wrong and an order of certiorari should issue with an order of mandamus by the Court to direct the Board to hear and determine the appeal.

17.  In the alternative, Mr Barnes submits, that the absence of the applicant’s signature amounted only to an irregularity capable of being cured, and which it subsequently was, and did not render the Notice of Appeal a nullity.

18.  Mr Barnes submits that an act amounting to an irregularity is, according to Hong Kong Legal Dictionary (2004), a “failure to comply with a procedural formality” such as a failure to comply with the Rules of Court, whereas by contrast an act which amounts to a nullity which is rendered nulland void, is one which has “no legal validity and no legal consequences”, for which Mr Barnes cited as an example a marriage where one or both parties are under the minimum statutory age.

19.  Mr Barnes further submits that the distinction between a fault amounting to an irregularity and one which renders the step taken as a nullity has been described in these terms in Smythe v Wiles [1921] 2 KB 66 at 76 per Bankes LJ citing Chitty’s Archbold’s Practice (14^thed):

“ Where the proceeding adopted is that prescribed by the practice by the practice of the Court, and the error is merely in the manner of taking it, such an error is an irregularity, and may be waived by the laches or subsequent acts of the opposite party; but wherethe proceeding itself is altogether unwarranted, and different fromthat which, if any, ought to have been taken, then the proceeding in general is a nullity, and cannot be waived by any act of the party against whom it has been taken.”

20.  Mr Barnes argues that it would be different if the statutory provision itself specifically requires that a notice of appeal must be signed byan applicant personally and that the notice not so signed would be treated asnull and void, in which case he accepts that the Board would be constrained to reject the Notice and consider it as a nullity, and hence he submits that is why the Security Bureau has recently proposed to amend the Immigration Ordinance accordingly at a Legislative Counsel Panel on Security on the Comprehensive Review on the Strategy of Handling Non-refoulement Claimsas to, inter alia, how the Board should handle incomplete or unsigned notice of appeal.

21.  Given that the proposal of the Security Bureau was only made for the purpose of discussion for future legislation, I indicated at the beginning of the hearing that it would not be appropriate for me to take it into account in the determination of the application now before me, and accordingly Mr Barnes did kindly refrain from referring to it during the hearing.  

22.  I however agree with Mr Barnes that other than as stipulated under section 37ZS(2) that the Notice of Appeal must be filed in the prescribed form, which the applicant did within the 14-day period, there is no other statutory provision as to how it should be completed or for that matter that it should be signed, or that the failing of which would render it a nullity, nor was it so stated in the instructions which accompanied each prescribed form for the appeal.

23.  Apart from those situations cited by Mr Barnes, similarly for the issue of writ of summons under the Rules of the High Court, for example, any defects or non-compliance with the rules for the indorsement of claim may only become a sufficient ground for setting aside judgment in default of notice of intention to defend rather than rendering the writ null and void: Order 6, rule 2 of the Rules of the High Court, Cap 4A, and that such irregularities can normally and routinely be cured by subsequent application for amendment.    

24.  This is in fact one of the reasons why, as submitted by Mr Barnes, the distinction between nullity and mere irregularity has long disappeared in civil proceedings, when the enactment of the rules in Order 2, rule 1 of the Ordinance has since done away with the old distinction betweennullities and irregularities, as it was held in Fabrique Ebel Societe Anonymev MBO Far East (HK) Ltd [1985] 1 HKC 166 when Hunter J (as he then was) stated at 168I:

“ Order 2 r 1 follows verbatim the change in the rules introduced in England in 1965. That came before the Court of Appeal in Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729. In the course of giving his judgment in that case the Master of the Rolls, Lord Denning says this:

This new rule does away with the old distinction between nullities and irregularities … Every omission or mistake in practice or procedure is henceforth to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice.

I should explain that before this alteration was brought about,a body of case law had developed which drew a distinction (a very difficult dividing line it was) between mistakes which rendered the procedural step a nullity, and mistakes which simplyconstituted irregularities.  What Lord Denning was there saying firmly was that that distinction has now gone.  That in substance is why the rule says that a number or failure which are set out ‘shall be treated as irregularities’.  That is also I think why the MR says that the court not only can, but should, rectify such errors, so long as it can do so without injustice.”

25.  His Lordship then went on to explain why that procedure should be followed even if the Court were to deal with mistakes which may even be regarded as fundamental at 169H:

“ For my part, I believe that the proper test here is that laid down by Lord Denning in Harkness and that is the test I proposeto apply. Or to put it the other way, if there is a distinction as the Court of Appeal in Bernstein seems to accept between a mere technicality or slip or mistaken step and something which they call ‘fundamental’, then in this particular case I would regard what happened as a mistaken step.”

26.  That procedure should in my view apply all the more to cases involving non-refoulement claims when it is specifically prescribed in the Principles, Procedures and Practice Directions of the Board that where life and limb are potentially at risk and that the potential consequence of its decision is grave that high standards of fairness require that an appellant be given an opportunity to be heard, and that it is for the Board in the exercise of its discretion to take the most effective and fairest way to approach the concern in question, and in the present case that it should have done so by allowing the applicant’s lawyer to file his Notice of Appeal in the absence of the applicant’s signature on terms such as it be signed by the applicant later when he was available and in any event before his appeal hearing.

27.  In the premises and for these reasons I agree that the Board was without legal basis to treat the applicant’s unsigned Notice of Appeal as a nullity rather an irregularity, and that in the circumstances the Board should have allowed it to be filed on 16 May 2017 when it was available before the expiration of the 14-day period.

Second Decision

28.  Given my above findings over the First Decision, any discussion regarding the Second Decision may seem academic, but in case that I am wrong about the First Decision, I propose to also consider the applicant’s challenge against the Board’s Second Decision.

29.  Mr Barnes submits that in refusing the application for late filing of the Notice of Appeal of 6 July 2017, the Board failed to apply the test of “special circumstances” correctly, and failed to have regard to the merits of the applicant’s case, and instead considered irrelevant matters, hence its decision was irrational.

30.  For late filing of notice of appeal, section 37ZT provides 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, 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.”

31.  For non-refoulement claims The Practice and Procedural Guidereplicates the same provisions.

32.  It is the applicant’s argument that the Board’s decision to subsequently refuse his application for late filing of the Notice of Appeal wasirrational in that it failed to apply the test of “special circumstances” correctly, and also failed to have regard to the merits of the applicant’s case.

33.  In arriving at the conclusion that special circumstances did not exist, Mr Barnes submits that the Board misapplied the three-stage test in Secretary of State for the Home Department v Begum [2016] EWCA Civ 122.

34.  In the Board’s decision the adjudicator stated that apart from the statement of reasons provided by the applicant in his Notice of Appeal referred to above, he did also consider those documents attached to the Notice and evaluate all the circumstances of the applicant’s case

35.  The adjudicator also stated that in his consideration of the applicant’s application he proposed to adopt the following three-stage approach in Secretary of State for the Home Department v Begum:

(i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules.  If the breach is serious or significant, the decision maker then considers the second and third stage.

(ii) The second stage is to consider why the failure occurred.  If there is a serious or significant breach and no good reason was given for the breach, then the decision maker moves to the third stage.

(iii) The third stage is to evaluate all the circumstances of the case,so as to enable the court to deal justly with the application.  In considering all the circumstances of the case, the decision maker also takes into account (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.

36.  In applying this approach the adjudicator found that a delay of 48 days by the applicant to file his appeal was a serious and significant failure to comply with the rules [18], and proceeded to refuse the application when he stated this in his decision:

“ 19. … I do not find the Appellant’s reasons for late filing acceptable to explain why he filed his Notice of Appeal 48 days late. I also do not find that the Notice of Appeal was filed at the earliest available opportunity. Considerable delays had been occasioned in the processing of the Appellant’s claim, and also inthe filing of his Notice of appeal. Taking the evidence as a whole, his late filing of the Notice of Appeal would show that he had not promptly dealt with the submitting of the Notice of Appeal and to have it filed within the prescribed time limit. In all the circumstances, I am satisfied that the Appellant would have no good reason for the breach.

20. Following the 3^rdstage referred to in Begum, I evaluated all the circumstances in the case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

21. There were no other matters known to me or revealed by the factual basis of the Appellant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.”

37.  It is clear from the above that the adjudicator was well aware of the applicant’s medical condition as disclosed in the Director’s decision including a medical report of 16 May 2016 and a psychological report of 31 May 2016 issued by Kowloon Hospital which suggested a post-traumatic stress disorder, and the various correspondences between the Director and DLS regarding the difficulties of his lawyer in accessing the applicant and obtaining instructions from him in respect of his claim and his intended appeal, the circumstances of his unsigned Notice of Appeal being rejected earlier by the Board, as well as the explanations from his lawyer as to the needs to obtain further medical reports from the relevant hospitals in support of his application for the late filing as a result as required by section 37ZT(1)(b) of the Ordinance, all of which constituted what Mr Barnes submits to be special circumstances which the Board was required to take into account in its determination of whether it would be unjust not to allow the late filing of the Notice of Appeal, but which it seems to me that the adjudicator did not do so in his decision, or to have properly or sufficiently explained why in those circumstances that it was not unjust not to allow the late filing of the applicant’s Notice of Appeal.

38.  It is my considered judgment that in the circumstances of the applicant’s case, high standards of fairness would have allowed the late filingof his Notice of Appeal, and accordingly the Board’s decision that it was not unjust not to allow him to do so was unreasonable or irrational.

39.  In the premises and for the reasons given, I grant an order of certiorari to quash both decisions of the Board, and direct that the applicant be allowed to file his Notice of Appeal/Petition within 14 days of this order to the Board to be heard before another adjudicator.

40.  On a nisi basis that costs should follow the event, I also order that costs be to the applicant to be taxed if not agreed and with Legal Aid taxation.

41.  Lastly it remains my wish to express my gratitude to Counsel for his valuable assistance rendered to this court during the hearing.