SIDDIKA KHADIZA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 790/2018

[2020] HKCFI 1818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 790 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 Bangladesh who arrived in Hong Kong on 11 March 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 11 March 2016 or within two weeks of its early termination, but when her employment was prematurely terminated on 12 September 2014, she did not depart and instead overstayed, and after she surrendered to the Immigration Department on 16 June 2016, she raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her paternal aunt and the aunt’s brothers over some family disputes.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Naladair, Sarisha Bari, Jamalpur, Bangladesh.  Sometime in 2002 her paternal aunt who was the second wife of her paternal uncle had a dispute with him and the Applicant’s father over certain land in the village, which eventually led to the murder of the paternal uncle, for which the aunt together with her two brothers were arrested by police for the murder and were subsequently convicted in 2010, but in 2013 after they were given bail pending their appeal, they threatened to kill both the Applicant and her father, which caused the Applicant to flee to Dhaka where she made arrangements to apply to work as a foreign domestic helper in Hong Kong, which she did on 11 March 2014 when she departed Bangladesh for Hong Kong, but when her employment was terminated on 12 September 2014, she did not depart and instead overstayed and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 20 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

3.  By a Notice of Decision dated 30 June 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (the “Ordinance”) (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

4.  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 her aunt upon her return to Bangladesh as low due to the absence or low intensity and frequency of past ill-treatment from her aunt, that it was a family dispute without any official involvement that state or police 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 Bangladesh with a large population of 156 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from her home district in large cities such as Dhaka where it would be difficult if not impossible for her aunt to locate her.

5.  On 24 July 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but the Board found her Notice of Appeal to have been submitted outside the 14-day period required by section 37ZS(1) of the Ordinance, and pursuant to section 37ZT(2) it proceeded to decide as a preliminary decision without a hearing whether to allow its late filing, and by a written notice dated 26 April 2018 it refused the Applicant’s late filing of her Notice of Appeal.

6.  On 7 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) that the Board failed to take account of the fact that she was then being detained in prison and that she had no legal assistance and with limited skill in English in preparing and submitting her Notice of Appeal within such a short time; and

(2) that the Board failed to make sufficient enquiry that she only received the Director’s decision on 10 July 2017 while being detained in prison and hence had insufficient time to submit her Notice of Appeal.  

7.  Before considering these complaints of the Applicant, it would be relevant to first set out the relevant sections of the Ordinance which govern the filing of notice of appeal, starting with 37ZS which provides a time limit for its filing as follows:

“ (1) 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).

(2) A notice of appeal must be –

(a) in a form specified by the Chairperson of the Appeal Board; and

(b) accompanied by a copy of the notice of the decision being appealed against.”   

8.  If a notice of appeal is filed only after the expiry of the 14-day period as noted above, as in the present case, section 37ZT then kicks in and 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.”

9.  In her Notice of Appeal dated 12 July 2017, the Applicant did in section 5 include a statement of her reasons for filing her Notice of Appeal late as follows:

“ … I am write this statement because I want to let you know of the reasons for late filing of notice of appeal/petition. Actually I send letter but they’re return it back my letter. They said can’t send it because too much pages inside so they’re not allow me to send. This is not my fault. I hope sir/madam can understand.”

10.  It would be relevant to also note that in section 2 of her Notice of Appeal, the Applicant had also put forward various grounds for her appeal.  

11.  Of the Applicant’s statement of reasons for her late filing of her Notice of Appeal, the Board set out the following considerations in its decision:

“ 11. The Appellant has provided under Section 5 of the Notice of Appeal a statement of reasons that she was late but no documentary evidence in support of the reason was adduced. It follows that the Appellant was under the impression that she was late when she completed the Notice of Appeal on 12 July 2017.

12. Notice of the Decision was dated 30 June, 2017 and addressed to DLS. The last day for filing of the Notice of Appeal pursuant to Section 37ZT of the Ordinance (as extended by the Section 37ZV) is 18 July 2018. Notice of Appeal was purportedly dated 12 July 2017. The Appellant was surely in time if the Notice of Appeal reached the Board on 12 July 2017. In any event, the last day is 18 July 2017. The Notice of Appeal was sent to the Board by post and was received by the Board on 24 July, 2017 at about 10 a.m.. In other words, the Appellant was late for 6 days.

13. This Board takes note, as revealed in the envelope sending the Notice of Appeal that the address of the Appellant at the time of sending the Notice of Appeal was “LWCI” which this Board takes it to refer to the Lo Wu Correctional Institute. The Appellant was at the time in custody.

14. The Notice of Appeal was not received by the Board until 24 July 2017 (which was a Monday) and does contain, inter alia, a statement of reasons for late filing. The Appellant has indeed failed to comply with the strict time limit requirement.

15. In gist, the reasons advanced by the Appellant under the statement of reasons is that she had once sent the letter (the Notice of Appeal) by post but it was returned because there were too many pages that they did not allow her to send. The Appellant has subsequently sent by post the Notice of Appeal successfully.

16. The Appellant was apparently under the impression that the last day for filing of the Notice of Appeal was on or even before 12 July, 2017 (the date of the Notice of Appeal). Otherwise, she would not have included in the Notice of Appeal, a statement of reasons for late filing.

17. Given the Appellant was in custody, it can reasonably be inferred that she could not send the Notice of Appeal by hand and could only send, as she did, the Notice of Appeal by post.

18. Given the Claim, it must have been a matter so important to the Appellant since the Appellant would be subject to harm or may even be killed if she failed in the Claim and is returned to Bangladesh. The Appellant would have been cautious and ought reasonably to have sent the Notice of Appeal to the Board earlier once she was refused in sending the Notice of Appeal in the first attempt. In any event, she ought reasonably to have sent the Notice of Appeal immediately upon first failed attempt to send the Notice of Appeal by post. She could or should have sent the Notice of Appeal by post on or about 12 July, 2017. If she did so, there was reasonable chance that the Notice of Appeal reached the Board on or before 18 July, 2017 resulting that the Appellant filed the Notice of Appeal in time.

19. Given the Appellant was in custody and the Board received the Notice of Appeal on 24 July, 2017 (a Monday) at about 10 a.m., it is reasonable to infer that the Notice of Appeal was posted on or about 20 or 21 July, 2017 (as 22 and 23 July 2017 were Saturday and Sunday respectively). If so, the Appellant was late for 2-3 days.

20. The regime governing late filing is strict and it matters not whether the delay was, as here, for short period of time, the Appellant has the duty to comply with the strict time limit requirement.  Despite the Appellant was in custody resulting longer time than usual to send the Notice of Appeal, the delay could have been avoided if the Appellant took earlier action to post the Notice of Appeal.  The Appellant has failed to do so and reason provided is not a special circumstance that make it unjust a refusal to allow late filing of the Notice of Appeal.”      

12.  It is clear that section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if there are special circumstances that it would be unjust not to do so, and while an appellant certainly has a duty to comply with the time limit requirement, it is not as the Board has stated to be so strict that “it matters not whether the delay was for short period of time”, and that section 37ZT(2) clearly mandates that the Board shall take into account of the length of the delay, the reason for the delay, and any other relevant matters of fact within the knowledge of the Board. 

13.  In the case of the Applicant, and in the circumstances she was then in as found by the Board, a delay of 2 – 3 days cannot on any view be regarded as serious or significant, and given her explanation that she did earlier send out her Notice of Appeal within time, again as accepted by the Board, but that it had been returned for her to reduce the amount of papers included before resending to the Board again through the authority, one can reasonably presume that an applicant in her situation would have to go through more hurdles in making such arrangements, a situation again also accepted by the Board.

14.  As such and as complained by the Applicant in her proposed grounds, I am of the view that it is reasonably arguable that the Board’s findings that there were no special circumstances that would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal are not Wednesbury reasonable in the circumstances of her case.

15.  Furthermore, it seems that the Board in refusing the Applicant’s application also failed to evaluate the merits of her appeal, which is clearly part of the relevant matters of fact within the knowledge of the Board required to be taken into account by section 37ZT(2)(b) of the Ordinance, as held by the Court of Appeal in Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019, when Hon Lisa Wong J in giving judgment for the court stated:

“ 23. … 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 Kham 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.”      

16.  In the premises it is also reasonably arguable that the Board in refusing to allow the late filing of the Applicant’s Notice of Appeal had failed to consider the merits of her intended appeal which is a relevant matter of fact within the Board’s knowledge under section 37ZT(2)(b) of the Ordinance.

17.  Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the basis as identified above, and that she shall issue an originating summons under Order 53 rule 5 of the Rules of the High Court, Cap 4A within 14 days from the date 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