SATBINDER SINGH v. WESLEY WONG, ADJUDICATOR (TORTURE PETITIONS) OF THE PETITION TEAM OF THE SECURITY BUREAU (“THE ADJUDICATOR”)

HCAL 133/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 133 OF 2015

____________

____________

______________

J U D G M E N T

______________

1.  The applicant applied for leave to apply for judicial review against :

(1) the decision of the Director of Immigration (hereinafter called the Director) dismissing his non-refoulement claim; and

(2) the decision of the Adjudicator of the Non-Refoulement Claims Petition Office[1] (hereinafter called the Adjudicator and the Board respectively) dismissing his appeal pursuant to section 37ZS of the Immigration Ordinance[2] (hereinafter called the Ordinance).

2.  The following rulings and direction were issued in relation to the application :

(1) Rulings on 16 March 2016:

(i) leave is granted for the Applicant to amend his Form 86; and

(ii) leave is granted on both grounds[3] for the Applicant to apply for judicial review against the decision of the Adjudicator  dismissing the appeal of the Applicant.

(2) Direction on 29 March 2016:

No determination on the Applicant’s application for leave for judicial review against the decision of the Director of Immigration dismissing his torture claim will be made until after the application for judicial review against the decision of the Adjudicator dismissing his appeal has been fully determined.

BACKGROUND

3.  The Applicant is an Indian national now 38 years of age.  He came from India to Hong Kong on 2 July 2014 and indicated that he desired to seek protection.  He lodged his non-refoulement claim formally on or about 21 August 2014.  The basis of the claim is primarily that he faced risks to his life and limbs due to confrontations between himself and several Public Democracy Party members, who targeted him due to his active role in Congress Party.

4.  He attended two interviews[4] with the Immigration Department.  By a Notice of Decision dated 16 October 2014, the Director refused his non-refoulement claim.

5.  The Applicant lodged an appeal against that decision of the Director pursuant to s37ZS of the Immigration Ordinance.  He was notified by a letter dated 16 December 2014 from the secretariat of the Board that his application for late filing of Notice of Appeal / Petition was refused.  The Adjudicator’s reasons for such refusal are set out in a document entitled “Note for File” which was sent to the Applicant at some stage. 

6.  On 17 July 2015, the Applicant filed a Notice of Application for Leave to apply for Judicial Review (Form 86).  The Form 86 was filed 4 months after the 3 months’ notice period had expired.

PRESENT HEARING

7.  The hearing was limited to determining whether the application for judicial review against the decision of the Adjudicator of not allowing late filing of notice of appeal by the Applicant should be granted.

8.  The Adjudicator indicated that he intended to take a neutral stance in the proceedings.

9.  The Director, who was added as an Interested Party, also indicated that he would take a neutral stance.

RELIEF SOUGHT

10.  In the Amended Notice of Application for Leave[5], the following relief are, inter alia, sought :

(1) An order of certiorari to bring up and quash the Chairperson’s decision;

(2) An order for extension of time under Order 53, Rule 4(1) of the Rules of the High Court;

(3) Such further and other relief as the court may provide; and

(4) An order for costs.

GROUNDS IN SUPPORT OF THE APPLICATION

11.  In the Form 86, the following grounds were set out :

(1) Insufficient enquiry as to the reasons of late filing by the Applicant; and

(2) The decision was unfair in that the Board had given tacit approval or had inadvertently generated a false sense of security as to the Applicant’s purported reason for late filing.

12.  In the Form 86, the following matters were stated in relation to Ground 1 :

(1) The Adjudicator has not conducted sufficient enquiry as to the reasons why the Applicant has submitted the appeal / petition late, in particular as :

(a) the Applicant had been detained all along which made it difficult for him to gather evidence to support his evidence / petition; and

(b) he did not have sufficient financial resources;

(2) the Adjudicator placed undue weight in his consideration on the Applicant’s failure to attach the Director’s Decision;

(3) the delay was slight; and

(4) the decision was unfair.

13.  In relation to Ground 2, it was stated that the Adjudicator failed to give due regard to the fact that the Applicant was not legally represented.

14.  At the hearing, the Applicant was represented by Miss Queenie LAU.  Miss Lau submitted that there were errors of law in the decision of the Adjudicator and also that the decision was unreasonable.

15.  Miss Lau submitted that the Adjudicator erred in law in placing too much weight on the Applicant’s omission to attach a copy of the Director’s Decision to his Notice of Appeal.  It was submitted that the omission was purely an administrative matter and not a matter that could be a proper basis under section 37ZT for the decision of the Adjudicator.

16.  Further, it was submitted that the Secretariat of the Board had acted unfairly and / or unreasonably in not mentioning this non-compliance when it saw fit to write to the Applicant reminding him to state the reasons for late filing.  The unfairness was demonstrated by the fact that eventually the non-compliance was one of the reasons based on which the Adjudicator did not allow the late filing.

17.  Miss Lau stressed the following factual features :

(1) As the Director’s Decision is dated 16 October 2014, the Applicant ought to have filed his Notice of Appeal / Petition on or before 30 October 2014 to meet the 14 days’ requirement;

(2) The Applicant did submit a Notice of Appeal which was received by the Appeal Board on 27 October 2014, this was done within time but the old form was used;

(3) At that time, the Applicant was not legally represented;

(4) On 28 October 2014, the Secretariat of the Board informed the Applicant of the irregularity and sent him a blank correct form; and

(5) The Applicant’s Notice of Appeal / Petition in the correct form was received by the Board on 10 November 2014.

DISCUSSION AND CONSIDERATION

18.  In his decision, the Adjudicator said :

“The Notice of Decision[6] was issued on 16 October 2014. According to the Notice of Appeal / Petition, the Appellant / Petitioner (hereinafter collectively referred to as ‘the Appellant’) must lodge his Notice of Appeal / Petition within 14 days after the Notice of Decision was served by the Immigration Officer.”

19.  There is no dispute that the 14 days’ requirement exists and that this requirement applied in the case of the Applicant’s filing of Notice of Appeal / Petition.

20.  In relation to late filing, section 37ZS(1) of the Immigration Ordinance provides that :

“A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of 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).”

21.  Section 37ZT(1) sets out the material which the Applicant has to provide to justify the delay : a statement of the reasons for failing to file the Notice within time and documentary evidence in support of the reasons.

22.  Section 37ZT(2) provides that  :

“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[7] –

(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.”

23.  Further, section 37ZT(3) provides :

“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 ...”

24.  In the document entitled “Note for File”[8], the Adjudicator noted :

(1) The Applicant failed to enclose the Notice of Decision of the Director; and that the importance of having the Notice enclosed is that the Applicant had to give reasons as to why he disagreed with the decision of the immigration officer being appealed against and where appropriate refer to the specific paragraphs in the Decision.  Such requirement is clearly set out in both the old and new forms.

(2) In the new form which was received by the Board on 10 November 2014, section 5 in respect of the reasons for late filing was left blank.  The Secretariat sent him a letter forthwith reminding him to state the reasons for late filing.  In a reply dated 14 November 2014 and received on 19 November 2014, the Applicant stated that he had handed the application to the welfare officer on 3 November.  The Adjudicator said he doubted if the Applicant was telling the truth as under normal circumstances a letter would be delivered within a day or two and not 7 days.

(3) He had carefully considered the grounds of appeal and found there was no substance in the grounds, since the Decision was not attached he had not been able to see which part of the decision the Applicant disagreed and how the Immigration Officer had erred.  The Adjudicator also said he found there was no substance in that :

(a) the Applicant stated he would submit documents concerning his case, however he did not state what sort of documents he wanted to submit and the reference of those documents in relation to his case;

(b) the condition of his family has nothing to do with his case;

(c) he just reiterated his case;

(d) it contained a lot of bare allegations which were not supported by evidence; and

(e) he stated rape cases in India which were not relevant.

25.  Judicial review is not a further or alternative appeal procedure.  The court in judicial review proceedings only plays a supervisory role.  The primary function is to examine whether there was an error of law. If there is no error of law, then unless the decision is unreasonable in the Wednesbury[9] sense, the Court will not interfere with a finding on substantial merits.

26.  Miss Lau cited Secretary for Security v Prabakar[10]and properly submitted the Court should carry out rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met.

27.  Section 37ZT(2) provides that the Board may only take account of the statement of reasons and accompanying documentary evidence if any, as well as any other relevant matters of fact within its knowledge, and nothing else.  The Board must also make the decision as a preliminary decision without a hearing.

28.  It follows that in performing the role as outlined in paragraph 25 above, this court can only examine the materials which were before the Adjudicator.

29.  The Board had been fair to let the Applicant to have the chance to provide his reasons for late filing even though he failed to do so when he submitted the new form.

30.  Having done that, the Adjudicator was under the duty to consider the reasons then provided by the Applicant.  The reason the Applicant then provided seems to be (as he had not expressly said so) that it was the welfare officer who should be accountable for the delay.

31.  The Adjudicator doubted the veracity of this assertion.  With abundance of experience he was in a position to hold such view.  The question, however, is whether forming the conclusion in such circumstances met the requirement of high standards of fairness.  The statutory provision puts the burden plainly on the Applicant of satisfying the Adjudicator that late filing should be allowed.  He has to do so by setting out the reasons in the statement in his application for late filing and enclosing documentary evidence if any in the application.  The Ordinance provides that the decision of the Adjudicator is to be made without a hearing.  It is silent as to whether the Adjudicator should make further enquiries or that the Applicant could make supplementation.  Notwithstanding that the burden of satisfying the Adjudicator is on the Applicant and therefore he is expected to provide sufficient information in his application, I do not think it is desirable to hold that under no situations would it be fair and appropriate for the Adjudicator to make further enquiries before he makes a decision.

32.  In the present case, the Applicant was in custody and filing of papers had to be done through the authority.  Whilst it is not unreasonable for the Adjudicator to take into account the time required for delivery of papers in normal circumstances, to meet the high standards of fairness the Applicant should have been given the chance to provide proof of his assertion and to persuade the Adjudicator that the delay was not a result of his fault and that the circumstances provided good reason to allow late filing.

33.  In the course of consideration, I noted that even if the papers had actually been submitted to the Welfare Officer on 3 November 2014 as asserted by the Applicant, it was out of time.  The Adjudicator did not say that he had considered whether or not to allow late filing if submission of papers had in fact been made on 3 November 2014, what he said was that he found it doubtful whether the Applicant had told the truth.  As this is an application for judicial review, it is not for me to consider whether late filing should be allowed if submission of the form had in fact been made on 3 November 2014 in the circumstances as this matter had not been decided upon by the Adjudicator.

34.  The Adjudicator stated the reasons for his decision.  Failure of the Applicant to include the Decision of the Director in the Notice of Appeal was one of the stated reasons.  He did not distinguish the weight he placed amongst the reasons.  It is therefore difficult to tell what weight he had placed in his decision on the failure to include the Decision.  It was the submission of Miss Lau that, if the non-compliance was the main reason, the Adjudicator had placed undue weight on the matter.  Inclusion of the Decision in the Notice of Appeal, though is a matter printed at the front of the form and those who are to submit a Notice of Appeal are required to read the instruction carefully, it is not a statutory requirement.  The submission of Miss Lau has force.

35.  The Adjudicator also mentioned that as the Decision was not included, he was not able to see which part of it was disagreed and how the Director was wrong.  The Adjudicator is obviously right in this observation.  What caused concern is that he went on to say he found there was no substance in the grounds of appeal.  It was the submission of Miss Lau that these conclusions are contradictory to the earlier observation of the Adjudicator.  I agree that the observation and conclusion do not sit well with each other.

36.  In addition, I also agree that the Adjudicator did not demonstrate that he had given due consideration to the fact that the Applicant did file a Notice within time though it was not in the correct form.

37.  In the circumstances, I find Ground 1 made out.

38.  The Adjudicator did mention he had considered the merits of the substantive application and stated five points in brief based on which he found there was no substance in the grounds of appeal[11].  Miss Lau did not see the need to make submission for the purpose of this application on whether it is appropriate to consider substantial merits in the course of deciding whether late filing is allowed.

39.  As this matter has not been canvassed in court, I shall be brief and stress that what I am to say is only preliminary view.

40.  The need to consideration of such matters, or whether it is appropriate or not to do so, is not expressly provided for in the relevant statutory provisions.  It does not appear to me to be right that substantial merit can never be taken into account.  It may well be that the provision of section 37ZT(3)[12] covers such situation.

41.  However, caution must be exercised in taking into account substantial merits in refusing an application for late filing since there may be risks of failure to meet the requirement of high standards of fairness, in particular as it is a preliminary decision without a hearing.

42.  In this case, as I will grant the remedy sought and therefore there will be a renewed consideration of the application for late filing, I do not consider it suitable to say further on the Adjudicator’s assessment of the substantial merits of the appeal.

43.  As regards Ground 2, I do not agree that by what were done the Board had given tacit approval or had inadvertently generated a false sense of security to the Applicant’s purported reason for late filing. It was appropriate to inform the Applicant that he had used the wrong form. There was no expressed, or even implied, indication that filing with the right form beyond time would be allowed.  By no means would the action of the Broad amount to such a representation.  It must be noted that when the Secretariat sent the new form to the Applicant, there was still time for the latter to submit the form within time, at least there is no evidence to show that there was not. 

44.  Ground 2 fails.

45.  Although I found Ground 1 made out, I still have to consider the appropriate course to take as not only had the Applicant filed his Notice to Appeal out of time, he also filed his application for leave to apply for judicial review late.

46.  For the purpose of an application for extension of time in relation to an application for leave to apply for judicial review, two provisions are relevant.

47.  Order 53 rule 4(1) of the Rules of the High Court[13] provides :

“An application for leave to apply for judicial review shall 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.”

48.  Section 21K(6) of the High Court Ordinance[14] provides :

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant –

(a) leave for the making of the application; or

(b) any relief sought on the application.

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

49.  In AW v Director of Immigration[15], the Court of Appeal endorsed the approach stated in Re Thomas Lai[16] and held that the following factors should be taken into account in consideration :

(1) Length of the delay;

(2) Explanation for the delay;

(3) Merits of the substantive application;

(4) Prejudice, both to the applicant if time is not extended, and to the public administration if the challenge is permitted to proceed out of time; and

(5) Question of general public importance.

50.  In his affirmations, the Applicant gave the following reasons to account for the delay :

(1) Even though he had applied for legal aid on 9 January 2015, he was not granted legal aid until 12 March 2015;

(2) There were delays in respect of assignment of Counsel by the Legal Aid Department; and

(3) The Applicant faced obstacles when attempting to collect relevant documents and materials.

51.  It was the submission of Miss Lau that the Applicant had pursued his application reasonably despite all the practical and financial difficulties he faced. 

52.  She urged the court to take into account, inter alia, the following matters :

(1) The present proceedings involved consideration of whether the authority had fulfilled its obligation to ensure that the claim of the Applicant had been properly investigated;

(2) The delay did not by itself cast doubt on the credibility of the Applicant’s assertion; and

(3) The application is not without merits.

53.  In all the circumstances, I am satisfied that the remedy as stated in the next paragraph sought should be granted.

ORDER MADE

54.  Extension of time is granted.  I also make an order of certiorari to bring up and quash the Adjudicator’s decision of not allowing the Applicant to file his appeal out of time.