ASLAM EHSAN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1619/2018

[2019] HKCFI 2837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1619 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 be granted.

It is further directed that:

The applicant must, within 14 days after the grant of leave, issue an originating summons for the hearing of the judicial review in accordance with O.53, r. 5 of the Rules of the High Court.

Observations for the Applicant:

THE APPLICATION

1.  This is an application taken out by the applicant pursuant to Order 53, rule 3 (2) of the Rules of the High Court (“RHC”) for judicial review of the respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.  The applicant requested a hearing.  The hearing was fixed at 10:00 am on 22 February 2019.  However, the applicant was absent on that day.

3.  By an Order dated the same day, I dismissed his application for want of prosecution.

4.  The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time.  Pursuant to Order 59, rule 2B(1) of the RHC, the applicant filed a summons dated 6 May 2019 to seek leave to appeal against the said Order to the Court of Appeal out of time.

5.  The applicant’s application was fixed to be heard on 5 July 2019.

6.  The applicant filed an affirmation in which he said that he was being detained in the Castle Peak Bay Immigration Centre. He further said that he should have good grounds for his appeal. But it was unnecessary for this Court to consider at this stage. It must be pointed out outright that it is wrong because this Court has to consider whether he has reasonable prospect of success in his intended appeal at this stage. See Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 4 December 2018 at §10.

7.  The applicant was originally legally represented for this application. However, shortly before the hearing, he changed his mind and decided to appear in person. However, his affirmation was, on the face of it, prepared by his lawyer and was filed on his behalf by the firm of solicitors.

8.  It puzzles me for a lawyer to set out those grounds above in support of his application. The law cited above is simply trite. It is the lawyer’s responsibility to understand the law before preparing the client’s affirmation because he/she has the responsibility to the Court.

9.  However, since he was being detained on the hearing, I am satisfied with his explanation for his absence on 22 February 2019.

10.  Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) of the RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 22 February 2019 dismissing his application.  The said order is now set aside.

11.  I shall now consider the applicant’s application for leave to apply for judicial review of the Director’s Decisions and the Board’s Decisions.

The applicant

12.  The applicant came from Pakistan through Macau. But he was denied permission to stay in Hong Kong when he was at the immigration counter at the China Ferry Terminal in Hong Kong on 12 February 2014. On that day, he raised a non-refoulement claim.

The Director’s Decisions

13.  The Director considered his application in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

14.  By Notice of Decision dated 11 August 2014 (“the Director’s Decision”) and Notice of Further Decision dated 6 January 2017 (“the Director’s Further Decision”) collectively called the (“the Director’s Decisions”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decisions

15.  The applicant appealed to the Board against the Director’s Decision by a letter dated 23 September 2014 and received by the Board on 30 September 2014. In any event, his application was late because the Director’s Decision was dated 11 August 2014. Assuming the said Decision was sent to him by ordinary post, he is deemed to receive it on the second working day after posting. See s. 37ZV(2) of the Ordinance.

16.  Since his application for appeal was late, the Board, upon receiving the said letter, by letter advised him to put in his reasons for his delay under section 5 of the Notice of Appeal/Petition in the prescribed form. The Board had also sent him the blank form and he was advised to return the form duly completed within 14 days.

17.  On 8 October 2014, the Board received the said Notice with section 5 blank and he did not sign his name in section 6 of the said Notice. On the same day, the Board sent him a letter advising him to fill in section 5 and sign in section 6 of the said Notice.

18.  Two days later, the applicant acknowledged receipt of the Board’s letter, but he did not enclose the completed form.

19.  On 9 December 2014, the Board received his singed Notice of Appeal/Petition, but again section 5 was not completed. The following day, the Board wrote to the applicant requesting that he provide reasons for late filing by 24 December 2014.

20.  On 19 December 2014, the Board received his signed acknowledgment of receipt dated 16 December 2014. Thereafter, nothing was heard from him.

21.  The Board considered section 37ZT(1) of the Ordinance:

(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.

22.  The Board stated in its Decision:

“11. The Applicant has given no reasons for late filing, and no documentary evidence in support. There are no other relevant matters of fact within my knowledge. By the section, I am precluded from considering the merits, if any, of the appeal.

12. There is nothing before me on which I could base a decision under section 37ZT(2). The application therefore must be and is refused.”

DISCUSSION

The Director’s Decisions

23.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

24.  The applicant’s application for leave to apply for judicial review of the Director’s Decisions therefore fails in limine. I dismiss his application.

The Board’s Decisions – extension of time for this application

25.  I note that the applicant’s application for leave to apply for judicial review of the Board’s Decision is late. The Board’s Decision was dated 11 February 2015 and Form 86 was dated 9 August 2018.

26.  However, there is a Board’s Further Decision dated 13 July 2018. Form 86 being dated 9 August 2018, is within 3 months of the date of the Board’s Further Decision. Since consideration of the Board’s Further Decision would have to take into consideration of those facts of the Board’s Decision, I would consider that time shall run from the Board’s Further Decision. The application is within time.

The Board’s Decision

27.  I shall first of all deal with the Board’s Decision in respect of the appeal against the Director’s Decision.

28.  I accept that the Board had given all the assistance to the applicant to perfect his late application for the appeal and he had not complied with the Board’s directions without any reasons at all.

29.  However, where the Board held that it was precluded from considering the merits, this is inconsistent with the decisions in Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, where it was held:

“17. Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of ‘any other relevant matters of fact within the knowledge of the Board’ apart from the explanation for the delay.

18. As the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, referred to in [9] of the Call-1 Form, where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

… …

20. We agree with the Judge that it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

30.  It is, therefore, for this reason alone that leave has to be given to the applicant for his application to apply for judicial review of the Board’s Decision. The Board should find the Director’s Decision for its consideration. It had failed to do so.

The Board’s Further Decision

31.  The applicant’s appeal to the Board against the Director’s Further Decision was also late, the date of the Director’s Further Decision was 6 January 2017 and the Board received the applicant’s Notice of Appeal on 28 March 2017.

32.  This time, the applicant had given his reason for his delay. His reason was that he did not understand English, which the Board refused to accept because his delay was not short and he should have obtained assistance himself.

33.  The Board refused to extend time for him to appeal. The Board did not consider his appeal.

34.  It is apparent that the Board maintained its view that it was precluded from considering the merits of the applicant’s appeal.

35.  For the same reason, I grant leave to the applicant to apply for judicial review of the Board’s Further Decision.

FURTHER DIRECTIONS

36.  The applicant must, within 14 days after the grant of leave, issue an originating summons for the hearing of the judicial review in accordance with O.53, r. 5 of the RHC.

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