AKTER LIPI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 425/2018

[2019] HKCFI 248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 425 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 refused.

Observations for the Applicant:

1.  This is an application by the applicant, a national of Bangladesh, for leave to apply for judicial review of the Torture Claims Appeal Board’s (“the Board”) decision not to allow the late filing of her appeal against the decision of the Director of Immigration (“the Director”) for refusing to re-open her non-refoulement claim first made some time in 2016.

2.  The following is a relevant chronology of her case as recorded in the Director’s decision:

July – August 2016:	The applicant made written significations to the Director for a non- refoulement claim.
12 August 2016:	The Director informed the applicant to attend at the Department to commence the process of her application.
30 September 2016:	The applicant attended at the Department to commence the screening process of her claim and was given a briefing session of the necessary requirements including submitting her Non-refoulement Claim Form (“NCF”) by 28 October 2016.
4 October 2016:	The applicant obtained legal representation from the Duty Lawyer Service (“DLS”).
9 October 2016:	The applicant was released from the Castle Peak Bay Immigration Centre (“CIC”) on recognizance.
12 October 2016:	The Director informed DLS of the applicant’s reported address and telephone number.
20 October 2016:	The Director reminded DLS to return the applicant’s NCF by 28 October 2016.
28 October 2016:	DLS informed the Director of no further instruction to act for the applicant.
3 November 2016:	The Director notified the applicant that as she failed to return her NCF by 28 October 2016, her claim was treated as withdrawn.
15 November 2016:	The applicant requested in writing to re-open her claim.
28 November 2016:	The Director requested the applicant to provide explanation with details and documentary evidence by 12 December 2016 of her failure to return her NCF within the previous prescribed time.

3.   As the applicant still failed to return her NCF or provided any explanation for her failure to do so, the Director by a Notice of Decision dated 3 January 2017 refused the applicant’s request to re-open her claim. That decision was sent by post on the same date to the applicant’s last reported address.   

4.   On 12 April 2017 the applicant filed her Notice of Appeal/Petition to the Board against the Director’s decision, but which the Board found to have been late by three months as section 37ZS of Part VIIC of the Immigration Ordinance, Cap 115 requires that notice of such appeal must be filed within 14 days after notice of the decision is given to an applicant unless its late filing is allowed by the Board.

5.  In her Notice the applicant gave her reason for her late filing as “The decision was sent on my old address and I could not appeal before” without any further particulars or any documentary evidence in support of her assertion.  In its decision dated 8 March 2018 the Board found no special circumstances for the applicant’s delay and refused to allow the late filing of her appeal.

6.  On 16 March 2018 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in it she put forward the following grounds for her intended challenge:

 (1) that the Board erred in failing to maintain high standard of fairness by not holding any oral hearing to allow the applicant the opportunity to put forward her case;

 (2) that the Board failed to apply the minimum standard of procedural fairness in its decision-making process;

 (3) that the Board failed to take into account of the applicant was not legally represented with insufficient legal knowledge, and did not inform the applicant could complain.   

7.  Her first complaint of not being provided with an oral hearing to enable her to present her case clearly cannot stand on any ground as section 37ZT of the Ordinance, also cited by the Board in its decision, clearly provides that the Board shall decide on the late filing of notice of appeal as a preliminary decision without any hearing 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.”

8.  As for her complaint under ground (2) of the Board’s failure to act fairly but failed to provide any particulars or elaboration of her assertion.  In its decision the Board gave its findings and reasons for refusing the applicant’s late filing of her Notice of Appeal as follows:

“ 18. The law provides that it is conclusively presumed that the Appellant had been served with the Notice of Decision as it was delivered to her known address.

19. The Appellant’s explanation for late filing of her application is that she changed address and was confused about who was acting for her.

20. The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in SSHD v Begum. Those principles are that there is a need to enforce compliance with rules as set out in the Ordinance, and the need for this type of application to be conducted efficiently and at proportionate cost.

21. The Board does not accept that the appellant would have been confused about who was acting for her, given the responsibilities the Duty Lawyer Service has.  The Notice of Decision sets out that the DLS did not receive instructions from the Appellant and she has not adduced any evidence to support her assertions.  The Appellant says that she changed address but it is her responsibility to inform the Director of Immigration of her whereabouts. I note that in the Appellant’s case she has not pursued her claim with any vigour and it is characterized by delay on her part.  Her appeal is three months out of time and this is an extraordinary delay.  The Board is not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.” 

9.  On the basis of these findings and in the circumstances of the case, the Board was clearly entitled to conclude that the applicant was solely to be blamed for her failure to properly and promptly inform the Director of her new address and that there were therefore no special circumstances to justify allowing the late filing of her appeal, as it has been repeatedly emphasized by the Court of Appeal that it is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner, and that the consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant: Said Umair v Torture Claims Appeal Board [2018] HKCA 82; Re Saqlain Muhammad [2018] HKCA 346; and Re Ram Ishver Dass [2019] HKCA 27.  

10.  As for her complaint in ground (3) that the Board failed to take into account that she had no legal representation and did not advise her to complain, clearly this cannot be accepted as any valid ground against the Board’s decision, as the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks 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.

11.  Furthermore, the applicant was given legal representation from DLS in her application before the Director, but somehow for reason known to her but never disclosed,DLS was subsequently unable to obtain instructions from her, of which she put the blame on her own confusion about the process.  Clearly this cannot be relied on as any ground to challenge the Board’s decision.

12.  In the premises and for these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.

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