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

HCAL 1496/2018

[2020] HKCFI 1821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1496 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of India who arrived in Hong Kong on 29 September 2014, but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the local supporters of rival political party Shiromani Akali Dal (“SAD”).  He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Village Sahnipur, Tanela, Tehsil Dudden Sadar, District Patiala, Punjab, India.  After leaving school he worked as a steel fixer, got married with a family of three children, and became a supporter of the political party Indian National Congress Party (“INC”) regularly attended their local meetings and rallies as well as putting up their posters and banners in his home village.

3.  In the 2014 general elections, and during INC’s campaign activities in his home village, the Applicant and his fellow INC supporters frequently came into conflicts with supporters of rival SAD, with some deteriorated into mass brawls between the rival supporters during which the Applicant had on a few occasions suffered injuries such as cuts and bruises but nothing serious enough to require hospitalization, and on other occasions he also encountered threats and abuses from rival supporters on the streets.   

4.  To avoid such further threats and harassments, the Applicant moved to Chandigarh to take shelter at his relative’s home, but as he felt it was not safe to remain in India, he therefore departed on 26 September 2014 first for Thailand and then for Hong Kong when he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 27 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 24 November 2014 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (the “Ordinance”) (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local SAD supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that he had been specifically targeted by those SAD supporters for harm when such conflicts between rival supporters were common in India, that in the absence of any official involvement that state protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man with working experience to move to other area away from his home district in other states such as Haryana or Rajasthan where INC are the ruling party and where it would be difficult if not impossible for those local SAD supporters to locate him.

7.  On 4 December 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 17 February 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the adjudicator for the Board.  On 12 March 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.  

8.  In its decision the Board found the Applicant’s evidence of his political activities in INC vague, inconsistent and conflicting that his assertion of being targeted by SAD supporters for harm as he refused to join their party unreliable and implausible that it did not accept that he had any well-founded fear of harm upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.   

9.  On 14 March 2017 the Director on his own initiative invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and upon perusing and considering such additional facts and information from the Applicant, the Director by a Notice of Further Decision dated 8 May 2017 again rejected his BOR 2 claim upon finding that the facts of his case does not engage BOR 2 claim and that he had failed to establish any personal and real risk of being deprived of his life in violation of BOR 2 risk.

10.  On 1 August 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, but he was then late with his Notice of Appeal, as section 37ZS of Part VIIC of the Immigration Ordinance requires that a person who wishes to appeal against a decision must file a notice of appeal within 14 days after notice of the decision is given to the person unless late filing is allowed by the Board under section 37ZT of the Ordinance, which provides as follows:

“ (1) If a notice of appeal is filed after the expiry of 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 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.”

11.  Accordingly, the Board by way of a preliminary decision without hearing on 18 July 2018 refused the Applicant’s late filing of his Notice of Appeal upon finding his delay of over 2 months as significant, and that having evaluated all the circumstances of his application in accordance with the applicable legal provisions of the Ordinance and the relevant principles stated in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 (03 March 2016), including the need to enforce compliance with the rules and the need for this type of application to be conducted efficiently and at proportionate cost.  

12.  On 30 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) lack of legal representation in his appeal before the Board;

(2) lack of legal assistance for not providing him with any translation of the Director’s request for him to submit additional facts for his BOR 2 claim as he was by then no longer legally represented and is unable to read or write English which was procedurally unfair to the Applicant; and

(3) that the adjudicator dealt with his BOR 2 claim on paper only without conducting any oral hearing for his appeal.   

13.  None of these grounds appear to me relevant to his application, as his appeal against the Director’s Further Decision in rejecting his BOR 2 claim to the Board as noted above did not in fact take place due to its refusal of his late filing of his Notice of Appeal.  However, given the serious implications of the Board’s decision on the Applicant, high standards of fairness require that the reasons of its refusal as set out in its decision be considered by the court with rigorous examination and anxious scrutiny.  

14.  While I accept that on the facts before it that the Board was perfectly entitled to find that the Applicant being late for over 2 months with his Notice of Appeal as significant and to reject all the explanations put forward by him for his delay for the reasons stated in paragraphs 25 – 32 of the decision, the Board did not appear to have proceeded to consider and evaluate all the relevant matters of fact within its knowledge as required by section 37ZT(2) of the Ordinance as noted above as well as the relevant principles stated in Begum, supra which it directed itself in its decision that where there is a serious or significant breach for which no good reason is given, the decision-maker is still required to evaluate all the circumstances of the case with a view to deal justly with the application.       

15.  In the present case, while the Board did take into account all the matters stated in section 5 of the Applicant’s Notice of Appeal as well as other relevant matters of fact within its knowledge relating to his late filing of the Notice of Appeal, it did not appear to have considered the merits of the appeal by reference to the grounds as set out in section 2 of his Notice of Appeal in which he had provided 5 pages of elaboration as to those grounds including error in law and unfair procedure in his process before the Director and in the Director’s decision for his intended challenge.

16.  As held by the Court of Appeal in Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019, the Board should under section 37ZT(2)(b) of the Ordinance also take account of the merits of the appeal, as Hon Lisa Wong J in given judgment of the court stated:

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

17.  In the premises and for the reasons given, I am of the view that it is reasonably arguable that the Board had failed to consider the merits of the Applicant’s appeal regarding his non-refoulement claim which is a relevant matter of fact within the knowledge of the Board under section 37ZT(2)(b) of the Ordinance.

18.  Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision based on that ground, and direct that he shall file an originating summons within 14 days of his receipt of this order and to serve a copy thereof 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