SARBJEET SINGH v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1088/2018

[2019] HKCFI 2425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1088 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

1. Leave to apply for judicial review of the Torture Claims Appeal Board ("the Board")'s decision dated 22 March 2018 be granted on the ground that the Board failed to take into account of the merits of the applicant’s appeal in exercising its discretion whether it would be unjust not to allow his late filing of his Notice of Appeal.

It is further directed that:

2. The applicant shall file an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as the 1^st respondent and the Director of Immigration as the 2^nd respondent.

Observations for the Applicant:

1.  Part VIIC of the Immigration Ordinance, Cap 115 has made provisions for the process of torture claims, starting with section 37X which provides for how a torture claim is to be made as follows:

“ (1) A person who claims non-refoulement protection in Hong Kong on the ground of a torture risk must signify to an immigration officer in writing the person’s intention to seek non-refoulement protection.

(2) The written signification must give a general indication of the person’s reasons for claiming non-refoulement protection in Hong Kong, being reasons that relate to an act falling within the meaning of torture as defined by section 37U(1).

…”

2.  Upon submitting his written signification, the claimant must then proceed to complete a torture claim form (“TCF”), and upon the commencement of the Unified Screening Mechanism, a non-refoulement claim form (“NCF”), and submit it to an immigration officer for determination of the claim, as stipulated by section 37Y of the Ordinance:

“ (1) A claimant must, on written request by an immigration officer—

(a) complete a torture claim form, and the completed form must—

(i) state the grounds of the claim and the facts supporting the claim; and

(ii) include such other information as is required by the form; and

(b) return the torture claim form so completed to an immigration officer at an address specified in the form, together with all documents supporting the claim that are readily available to the claimant when the form is returned.

…”

3.  Before a torture claim or non-refoulement claim is decided by an immigration officer,however, a claimant may withdraw the claim which may later be re-opened on certain conditions under section 37ZE of the Ordinance as follows:

“ (1) A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2) Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b)   by reason of special circumstances, it would be unjust not to re‑open the claim.”

4.  On 20 November 2015 the applicant, a 29-year-old national of India, submitted a written signification for non-refoulement claim to the Immigration Department, but before any NCF was submitted by him to an immigration officer, the applicant in writing on 10 April 2017 notified the immigration officer of his decision to withdraw his claim, and on 18 April 2017 the immigration officer in writing notified the applicant that no further action would be taken regarding his case.

5.  On 4 May 2017 the applicant in writing to the immigration officer that he would still be in danger if returned to India and requested to re-open his claim.     

6.  On 12 May 2017 the immigration officer requested the applicant to provide the information and evidence of the change of circumstances stipulated by section 37ZE of the Ordinance in writing on or before 19 May 2017 for the consideration of his request to re‑open his claim, with a warning that if no such information was received from him by then, it would be taken that no such information would be submitted in support of his request.

7.  As no further information was submitted by the applicant by 19 May 2017, nor could he be contacted by phone on 31 May 2017, the immigration officer by a Notice of Decision dated 13 June 2017 to the applicant refused to re-open his claim upon considering the information previously provided by him and all the circumstances of his case.

8.  On 11 December 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision not to re-open his claim, and in Section 2 of his Notice of Appeal, he set out his grounds of appeal including 9 pages of written submissions as well as 7 supporting documents including what appear to be court and medical documents, and in Section 5 he also included an application for late filing of his Notice of Appeal with a statement of the reasons for his late filing, as section 37ZS of the Ordinance provides that a notice of appeal must be filed within 14 days of the immigration officer’s decision, which in the applicant’s case expired on 29 June 2017, and hence he was more than five months late with his appeal.

9.  Pursuant to section 37ZT(2) of the Ordinance, and by way of a preliminary decision without a hearing, the Board on 22 March 2018 refused to allow the late filing of the applicant’s notice of hearing.

10.  In its decision the Board adopted the three-stage enquiry laid down by the United Kingdom Court of Appeal in Secretary of State for the Home Department v Begum [2016] EWCA Civ 122, and found the five months’ delay to be serious, and that the applicant’s explanation was not good reason to justify the breach, as it explained as follows: 

“ 12. The principles and methodology laid down by the UK court must be regarded as having universal application. In other words the principles that litigation must be conducted efficiently and at proportionate cost; and that compliance with rules and practice directions must be enforced. These are matters of importance here in Hong Kong as they are in the United Kingdom.

13. In relation to Stage 1, I am of the view the 5 months’ delay is a serious delay, one that would require a very good reason to justify the breach. As for Stage 2, what the Appellant has stated in Section 5 of the Notice of Appeal does not amount to good reason. None of the documents attached to the Notice of Appeal appears to justify the breach; some of the documents appear to have been created in 2014, while one of the documents appears to have been created in 2015. Nothing appears to explain why the Appellant was not able to file his Notice of Appeal on or prior to 29 June 2017.

14. It was noted that in the last paragraph of the Notice of Decision dated 13 June 2017 the Appellant was reminded that he had to file his Notice of Appeal “… within 14 days from the date of this notice”. The address of the Board, (where the Appellant must send his Notice of appeal) was also given in that last paragraph. In the circumstances, the Appellant had been provided with all the information that he needed in order to file his Notice of Appeal within time.

15. In all the circumstances, the Board is satisfied that the application for late filing of this Appellant’s Notice of Appeal can justly be rejected.”    

11.  On 13 June 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated the reason for his delay in filing his Notice of Appeal, and claimed that neither the Director nor the Board was correct in their decision to refuse to allow him to re-open his claim but without providing any particulars or elaborations as to why they were so.

12.  Nevertheless, given the fact that he is unrepresented, and that the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, I shall proceed to do so with rigorous examination and anxious scrutiny of the Board’s reasons for its refusal to allow the applicant’s late filing of his Notice of Appeal.

13.  While I agree that the Board was entitled to find five months to be a serious delay,it seems to me that after having conducted the first two of the three-stage enquiry alluded to in Begum on which the Board had directed itself in its decision as noted above, it somehow appears to have stopped its enquiry instead of proceeding to the 3^rd stage to evaluate all the circumstances of the case so as to deal justly with the application, including any other relevant matters of facts within its knowledge as required by section 37ZT(2)(b) of the Ordinance as noted above.

14.  In Re Qasim Ali [2019] HKCA 430, the Court of Appeal held that the relevant circumstances which the Board is required to take account of in deciding whether to allow the late filing of a notice of appeal must include the merits of the appeal, as Lisa Wong J stated in the judgment for the Court:

“ 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.”  

15.  In the present case, it is in my view reasonably arguable that the Board failed to take into account the merits of the applicant’s appeal in exercising its discretion whether it would be unjust not to allow his late filing of his Notice of Appeal, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

16.  In the premises and for the reasons given, I grant leave to the applicant to apply for judicial review of the Board’s decision on the ground as stated above, and direct that the applicant shall file an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as the 1^st respondent and the Director as the 2^nd respondent.

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