AMRITPAL SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 62/2018

[2020] HKCFI 283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 62 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 granted; and

2. the applicant shall file and serve an originating summons within 14 days from the date of the order herein setting out the ground that the Torture Claims Appeal Board (“the Board”) had failed to consider the substance of the Applicant’s non-refoulement claim which is a relevant matter of fact within the Board’s knowledge within the meaning of section 37ZT(2)(b) of the Ordinance, and to serve all the relevant documents on the Board as the first respondent and the Director of Immigration as the second respondent.

Observations for the Applicant:

1.  Part VIIC of the Immigration Ordinance, Cap 115 has made provisions and regulations for the making and assessment of a claim for non-refoulement protection in Hong Kong on the ground of a torture risk, starting with section 37X which provides for how such a claim may be made to the Director of Immigration (“the Director”) 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).

(3)   On signifying an intention under subsection (1), the person must allow an immigration officer or an immigration assistant to take the person’s fingerprints and photograph.

(4)   A torture claim is made when subsections (1), (2) and (3) have been complied with by the person making the claim.

(5)   A torture claim may be made only in respect of a person’s removal or surrender to a place outside China.”

2.  Having signifying a torture claim as above, the claimant must then submit a torture claim form as provided under section 37Y as follows:

“ (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.

(2) The claimant must return the completed torture claim form in accordance with subsection (1)(b)—

(a) within the period of 28 days after a written request under subsection (1) is given to the claimant; or

(b) within any further period that an immigration officer allows under subsection (3).

(3) An immigration officer may—

(a) on an application made by a claimant in writing before the expiry of a period for returning a completed torture claim form in respect of the claimant’s torture claim; and

(b) on being satisfied that, by reason of special circumstances, it would be unjust not to allow a further period for the claimant to return the completed form,

allow a further period that the immigration officer considers appropriate for the claimant to return the completed form.

(4)   The torture claim form is to be in a form specified by the Director.”

3.  Upon commencement of the Unified Screening Mechanism (“USM”) in 2014 when a torture claim is taken as a non-refoulement claim, these provisions also apply to submitting a Non-refoulement Claim Form (“NCF”) by a claimant, and section 37ZA sets out the following duties required of the claimant to substantiate his or her torture claim or non-refoulement claim:

“ (1) It is the duty of a claimant to substantiate a torture claim, and to this end,the claimant must—

(a) provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;

(b) comply with every requirement, procedure and condition (including any time limit)—

(i) prescribed by this Part; or

(ii) required or specified by any person under this part.

(2) A claimant must provide to the Director and (on an appeal) to the Appeal Board—

(a) the claimant’s residential address in Hong Kong; and

(b) the claimant’s correspondence address in Hong Kong (if different from the residential address),

and must notify the Director and (on an appeal) the Appeal Board in writing of any change in either of those addresses as soon as practicable after the change.”  

4.  If a claimant fails to return a completed torture claim form as required above, it is deemed as withdrawn but the claimant may subsequently request to re-open the claim under section 37ZG as follows:

“ (1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2) An immigration officer must give the person who made the claim a written notice stating that—

(a) the torture claim is treated as withdrawn under subsection (1); and

(b) the person may apply to re-open the claim under subsection (3).

(3) A torture claim treated as 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 due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required under section 37Y(2).

(4) If an immigration officer decides to re-open a person’s torture claim under subsection (3), the immigration officer must, by written notice,inform the person—

(a) of the decision; and

(b) that the person is required to return a completed torture claim form in respect of the claim to an immigration officer at an address specified in the form within 14 days after the notice is given.

(5) If an immigration officer decides not to re-open the person’s torture claim,the immigration officer must, by written notice, inform the person of—

(a) the decision;

(b) the reasons for the decision; and

(c) the person’s right under section 37ZR to appeal against the decision.

(6) Ifa torture claim is re-opened under subsection (3), subject to subsections (7) and (8), processing of the claim is to continue in accordance with this Part as if the claim had not been withdrawn.

(7) Section 37Y(2) applies to the torture claim as if for paragraph (a) of that section there were substituted—

‘(a) within the period of 14 days after the notice under section 37ZG(4) is given to the claimant; or’.

(8) If a completed torture claim form in respect of the torture claim is not returned in accordance with section 37Y(2) as read with subsection (7),the claim is to be treated as withdrawn under subsection (1)—

(a) on the expiry of the 14-day period; or

(b)   if a further period is allowed under section 37Y(3), on the expiry of the further period.”

5.  It is with these provisions in mind that I proceed to consider the application now before me by the Applicant for leave to judicially review the decision of the Torture ClaimsAppeal Board (“the Board”) in refusing to allow late filing of his appeal against the Director’s refusal to re-open his non-refoulement claim after it had been deemed withdrawn due to his failure to return a completed NCF within the period required by an immigration officer.

6.  The Applicant is a national of India who signified his torture claim by a written representation on 9 August 2010 in which he stated that:

“ I wish to apply for the torture claim because I have problem in my country India. So, I want to stay in Hong Kong …”

7.  Upon the commencement of USM, the Applicant’s claim was therefore taken as a non-refoulement claim, and on 16 March 2015 he was informed by the Immigration Department in a briefing session, with the assistance of an interpreter, of the requirements to complete and return his NCF, and at the same time he was handed a Notice to Persons Making a Non-refoulement Claim (“the Notice”) setting out all the relevant requirements and provisions referred to above, a blank NCF for his completion and a covering letter of the same date confirming the same including the consequences of his failure to return the completed NCF within the required period of 28 days would render his claim be treated as withdrawn.  He was also referred to the Duty Lawyer Service (“DLS”) on the same day.

8.  On 17 March 2015 the Applicant was offered and accepted legal representation from DLS.

9.  By letters dated 8 April 2015 and 29 April 2015 the Director reminded DLS of the requirement for the Applicant to return his completed NCF on or before 6 May 2015 and that failing which his claim would be treated as withdrawn.

10.  On 4 May 2015 DLS informed the Director that they had no further instructions to act for the Applicant in respect of his claim.  Thereafter the Director was unable to contact the Applicant by the telephone number provided by him.

11.  By a Notice dated 11 May 2015 the Director informed the Applicant that as he failed to return his completed NCF on or before 6 May 2015 or at all, his claim was treated as withdrawn, but which he may apply to re-open by providing sufficient evidence to satisfy an immigration officer that he had not been able to return the completed NCF as required due to circumstances beyond his control.

12.  On 12 June 2015 the Applicant through DLS requested to re-open his claim.

13.  By a letter dated 19 June 2015 to DLS the Director required the Applicant to provide information to support his request on or before 6 July 2015.

14.  On 3 July 2015 the Applicant through DLS provided the following information:

 (i)     that he had spent part of his travel allowance on food and other uses leaving insufficient money to go to DLS for the completion of his NCF;

 (ii)     that he was unable to rent a fixed abode and had been staying in faraway places in the New Territories which were too expansive for him to travel to DLS in Kowloon Bay;and

(iii)     that he did not have sufficient money to top up his mobile phone service and therefore had no means to contact DLS.

15.  In gist, the Applicant’s reason for his failure to return his NCF to the Director is due to his lack of money to go to the office of the DLS to give his instructions for his claim between 17 March 2015 when he was offered legal representation from DLS and 6 May 2015 which was the deadline for returning his NCF, a period of more than seven weeks,during which as pointed out by the Director that he was able to regularly report to the Recognizance Office of the Immigration Department at Ma Tau Kok without fail, and hence it was not accepted by the Director that it was for lack of fund that he was unable to travel to DLS to complete his NCF, or that it was any special circumstances beyond his control, and so by a Notice of Decision dated 27 July 2015 to DLS the Director refused the Applicant’s request to re-open his claim.  At the end of his decision the Director also informed the Applicant that he may lodge an appeal against his decision to the Board within 14 days, and provided him with its address.

16.  The requirement for an appeal to the Board to be made within 14 days was set out in section 37ZS of the Ordinance, and for late filing of the 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.”

17.  However, in the Applicant’s case, it was not until 16 August 2017 when he filed his appeal to the Board with the following grounds stated in Section 2 of the Notice of Appeal:

“ I would like to humble request you thatI am Punjabi religion I already change my religion I convert Punjabi became a Christian. Sir if I go back my country India my religion member are kill me. That’s why I flee to Hong Kong and save my life. I don’t want to go back my country because back India my life will be in a very danger. Please Sir help me to appeal my case …” [sic]

18.  Here for the first time the Applicant disclosed that the basis of his non-refoulement claim was due to fear of harm or persecution over his alleged conversion from Punjabi religion of Sikhism to Christianity.  By then he was however seriously out of time with his appeal by more than two years, and that he did not include any application for his late filing or any statement of reasons for such late filing as required under section 37ZT(1) above.

19.  It would take a further delay of more than one month on 28 September 2017 for the Applicant to file another notice of appeal with the same ground of appeal as before but this time he included an application for late filing with a statement of his reasons in Section 5 of his Notice stated as follows:

“ The reason for late filing is I was in the prison since 4 January 2017 to 19 June 2017 in 19 June 2017 I was detain in CIC. In 21 June 2017 I was inform by immigration that my non-refoulement claim was deemed withdrawn on failure to return completed non-refoulement claim form. Therefore, sir I would like to request you to re-consider my non-refoulement claim.” [sic]

20.  Pursuant to section 37ZT(2) the Board proceeded to consider the Applicant’s late filing of his notice of appeal by way of a preliminary decision without a hearing, and by its decision dated 13 October 2017 it did not allow the late filing and refused the Applicant’s notice of appeal, as it explained in its decision firstly its findings of the facts of how the Applicant had failed to return his completed NCF despite being given ample time and opportunity to do so and with legal representation from DLS as referred to above,and proceeded to note as follows:

“ 15. … there was no reason for the Appellant not to know that his non‑refoulement claim was deemed withdrawn on 7 May 2015, and that his request to re-open his non-refoulement claim was rejected by the Director on 27 July 2015. The Appellant had the service of the DLS and it was not reasonably acceptable that for more than two years, he did not know that his request to re-open his non-refoulement had been rejected.”

21.  On the basis of such factual findings, the Board then proceeded to apply the principles set out in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 in its consideration of whether to allow the Applicant’s late filing of his notice of appeal, and refused to do so for the following reasons stated in its decision:

“ 16. Following the principles and methodology in the United Kingdom Begum case, I found, firstly, that a delay of over 2 years in filing an appeal against the Notice of Decision is a serious and significant failure to comply with the rules.

17. Secondly,I do not find the Appellant’s reason for late filing acceptable to explain why he filed his Notice of Appeal over two years late. In all the circumstances, the Appellant would have no good reason for the breach.

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

19. 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.”

22.  On 11 January 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) that the Board did not properly take into account that the Applicant was not educated and with no lawyer provided to assist and advise him in the consideration of his appeal;

 (2) that the Board decided on his case based on assumptions; and

 (3) that in the absence of evidence to prove his case did not mean that the Applicant had no case.  

23.  The complaint under Ground (1) that the Applicant was uneducated with no lawyer to assist him in his appeal is clearly not arguable given that the Court of Appeal has already held that high standards of fairness does not necessarily prescribe that a claimant for non-refoulement protection must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

24.  As for the two remaining grounds, they appear to me just bare assertions of the Applicant without any particulars or specifics or elaborations as to exactly how they apply to his case, and clearly on the basis of the factual materials before the Board and even on the Applicant’s own case that it was only on 4 January 2017 that he was in prison and/or in CIC, by then he would still have been seriously late with his appeal by more than 17 months, of which the Board was in my view perfectly entitled not to accept his explanation for his late filing and found that he had no good reason for such serious breach of the rules.  

25.  However, and while I am mindful that this may not be exactly what the Applicant had intended to rely on for his application, it seems to me that in its undertaking of the 3^rd stage enquiry alluded to in Begum, supra, on which it had directed itself at [18] as noted above, the Board did not take into account the merits of the Applicant’s intended appeal,as it was required to do so under section 37ZT(2)(b) as above, and as held by the Court of Appeal in Re Qasim Ali [2019] HKCA 430, CACV 547/2018 when Lisa Wong J in giving judgment of the court stated:

“ 23. Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Development 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.”

26.     As noted above the adjudicator did not appear to me to have taken any consideration of the proposed ground(s) of appeal given by the Applicant in Section 2 of his Notice, and hence it may be reasonably arguable that the Board had failed to take account of all the relevant matters of facts within its knowledge of the Applicant’s case under section 37ZT(2)(b) or when it undertook the Begum 3^rd stage enquiry of all the circumstances of the case  as it alluded to in its decision [18], and as held by the Court of Appeal in Re Qasim Ali, supra that it was required to do so regardless of the procedural breaches or the lack of explanation therefor.

27.     For these reasons I am of the view that the intended application for judicial review of the Board’s decision is reasonably arguable on that basis, and accordingly I grant leave for the Applicant to do so, and that in accordance with Order 53, rule 5 of the Rules of the High Court, Cap 4A, he shall file and serve an originating summons within 14 days from the date of this decision setting out the ground that the Board had failed to consider the substance of the Applicant’s non-refoulement claim which is a relevant matter of fact within the Board’s knowledge within the meaning of section 37ZT(2)(b) of the Ordinance, and to serve all the relevant documents on the Board as the first respondent and the Director as the second 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