RE KAMALJEET SINGH

CACV 126/2023, [2023] HKCA 1195

On Appeal From [2022] HKCFI 2311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 126 OF 2023

(ON APPEAL FROM HCAL NO 706 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 28 July 2022[1] refusing to grant leave to the applicant to apply for judicial review against the decision(s) of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”).  The Board’s decisions arose from the decisions of the Director of Immigration (“Director”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is an Indian national.  He arrived in Hong Kong on 23 October 2010 and was permitted to remain as a visitor until 27 October 2010.  He did not depart, and has overstayed.  On 10 November 2010, he surrendered himself to the Immigration Department, and raised his non-refoulement claim on the same day.

3.  The applicant’s claim was based on the fear that, if he were to return to India, he would be harmed or even killed by the Akali Dal party and/or its supporters, due to his involvement with the rival Indian National Congress.  After the first incident in which he was violently assaulted by Akali Dal supporters, he complained to the police in Malawala, Punjab, but was instead arrested and assaulted by the police due to the Akali Dal having accused him of assault.  The detailed factual allegations in the claim were set out at paragraphs 6.1 to 6.41 of the Director’s decision dated 28 May 2015 referred to below.

4.  By notice of decision dated 28 May 2015 (“1^st Director’s Decision”), the Director assessed the applicant’s claim with reference to BOR 3 risk,[2] torture risk[3] and persecution risk,[4] and rejected the claim.

5.  The applicant wished to appeal to the Board against the 1^st Director’s Decision (“1^st Board Appeal”).  He filed his notice of appeal with the Board on 15 June 2015, Monday.  The Board considered it to have been filed “3 days late”.

6.  The applicant applied for late filing, and included in his notice of appeal a sentence stating (in English translation): “Respected Sir, I appeal to immigration for mercy.  I apologise because I had forgotten”.  The Board did not accept the explanation, and in its written decision dated 31 August 2015 (“1^st Board Decision”) it refused to accept the late filing of the 1^st Board Appeal.

7.  The applicant did not at that point apply for leave for judicial review of the 1^st Board Decision.

8.  The applicant was invited by the Director by letter dated 23 January 2017 to submit additional information for consideration of his claim with reference to BOR 2 risk.[5] The applicant sent the Director a letter dated 2 February 2017, in which, according to the Director, the applicant repeated his previous involvement with the Indian National Congress and his problems with the Akali Dal party in India but provided no additional relevant materials or facts.  By notice of decision dated 8 February 2017 (“2^nd Director’s Decision”), the Director rejected the applicant’s claim with reference to BOR 2 risk.

9.  The applicant appealed against the 2^nd Director’s Decision to the Board (“2^nd Board Appeal”).  After a hearing on 15 January 2019, the Board issued its decision in writing on 7 March 2019 (“2^nd Board Decision”) dismissing the 2^nd Board Appeal, because in its view the applicant’s grounds of appeal “only concern his problem with the Akali Dal Party which had been determined under USM 1727” and the matter was “therefore res judicata and cannot be re-litigated”.  “USM 1727” was the reference number stated on the 1^st Board Decision.

Decision of the court below

10.  On 13 March 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review.  The decision in respect of which relief was sought was stated to be the decision of the Board made on 7 March 2019 dismissing the appeal by ruling that the applicant failed to establish a case for non-refoulement protection “under the principles of Torture or BOR 2 or BOR 3 or Persecution”.  The date of 7 March 2019 was that of the 2^nd Board Decision, but the reference to Torture, BOR 3 and Persecution would suggest that the applicant also sought relief in respect of the 1^st Board Decision.  In his supporting affirmation, the 1^st Applicant raised the following grounds for judicial review which the Judge summarized at [14] of the Form CALL-1:

“ 14. In his affirmation in support of his application, the applicant set out the grounds below.

(1) The adjudicator did not inform him that he could complain.

(2) The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirements.

(3) The adjudicator acted in a procedurally unfair manner in dealing with his appeal: there was no hearing and he was not legally represented; he was not given the chance of submitting written submissions and evidence; the Board relied upon the source of news which is not officially recognized or it is simply hearsay and they are outdated, resulting in its speculation of his case.

(4) The Board’s Second Decision was unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.

(5) The Board failed to meet the greater care and duty owed to a self-represented claimant.”

11.  A hearing before the Judge was fixed for 16 May 2022, but the applicant was absent for the hearing. Thus the Judge proceeded to determine the application upon consideration of the documents only.  On 28 July 2022 the Judge issued his decision in writing refusing to grant leave to apply for judicial review.  His reasons were set out at [15] – [20] of the Form CALL-1 as follows:

“ 15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16. The Court will bear in mind that the Board’s Second Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had had a fair hearing before the Board and he had nothing to say.

17. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

18. Those grounds in paragraph 14 above are not valid reasons to challenge the Board’s Second Decision.

19. Ground (1) fails as it is not a valid ground to challenge the Board’s Decision. The law does not provide that the Board must inform him that he could complain. Grounds (2), (4) and (5) are his bare assertions or opinions without any evidence or specific in support. Insofar as Ground (3) is concerned, his issues will be answered in the following manner. The Board has the discretion not to hold a hearing under Schedule 1A of the Ordinance.¹ The applicant has not been able to inform this Court what submission that will assist his appeal was not allowed to be submitted to the Board. Such written submissions should have been submitted in his notice of appeal. As the Board did not have question for the applicant, the Board might decide to determine the appeal without a hearing. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22]. It is only his opinion that the Board had relied upon source of news that is outdated or not officially recognized. This ground fails too.

20. The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

Appeal to this Court

12.  On 26 October 2022, the applicant filed a summons in the Court of First Instance to apply for an extension of time to appeal against the Judge’s refusal of leave for judicial review.  The Judge refused that application on 24 November 2022.[6]

13.  The applicant then filed a summons in this Court on 30 December 2022 to renew his application for an extension of time to appeal.  On 9 March and again on 6 April 2023, G Lam JA granted an extension of time.  On 27 April 2023, the applicant filed his Notice of Appeal against the Judge’s refusal of leave for judicial review.  In that document, the applicant’s stated ground of appeal is that he would be in great peril if he were to return to India.

14.  The applicant lodged written submissions on appeal, together with an appeal bundle, on 10 May 2023.  In those submissions, he discussed certain general principles on asylum, and raised three arguments:

(1)  the Board refused his appeal without any reason;

(2)  he does not want to go back to India because his life would be in great peril if he were to return there;

(3)  the Board failed to make sufficient inquiry before finalizing its decision.

15.  In his written submissions the applicant also repeated the grounds for judicial review stated in his Form 86.

Discussion

1^st Board Decision

16.  Given that the 1^st Board Appeal was not entertained at all on the basis that it was filed late, we shall first examine whether the applicant’s notice of appeal was in fact filed late.

17.  The statutory 14-day time limit for appealing a decision by the Director to reject a non-refoulement claim is prescribed by s 37ZS(1) of the Immigration Ordinance (Cap 115), which provides (and provided at the time in 2015):

“ 37ZS. Notice of appeal

(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).”

18.  It is notable that s 37ZS(1) provides that the 14-day period begins on the day after the Director’s notice of decision is given to the non-refoulement claimant, not on the day after the decision is issued.

19.  Section 37ZV(1) provided (in 2015) that a notice required to be served or given by the Director on or to a person under that Part of the Ordinance could be served on or given to that person personally, or by leaving it for him, or sending it by post to him, or, where the person was acting by a legal representative, by leaving it for or sending it by post to the legal representative.

20.  On the precise time when a notice so given by the Director was deemed to have been given, s 37ZV(2) provided:

“ (2) A notice or other document served or given in the manner described in subsection (1), other than sending it by post, is conclusively presumed to have been served or given and received at the following time–

(a) if it is served on or given to the person personally, when it is so served or given; or

(b) if it is left at a place of abode or business or an address, on the second working day after it was so sent.

(3) A notice or other document served or given by sending it by post in the manner described in subsection (1) is presumed, in the absence of evidence to the contrary, to have been served or given and received on the second working day after it was so sent.”

21.  In the present case, the letter embodying the 1^st Director’s Decision was addressed to the applicant “(c/o Duty Lawyer Service, CAT Office)”, without any further address.  The Duty Lawyer Service’s Non-refoulement Claims Office appears to have been located in the same building as the Immigration Department’s Removal Assessment Section from which the notice was issued.  The envelope is not in the evidence but may fairly be inferred to have been addressed in the same way as the letter.  This would suggest that the 1^st Director’s Decision was not given personally to the applicant or sent to him by post, but was delivered to and left at the Duty Lawyer Service’s office for the applicant.  Assuming this was done on the date of the letter (i.e.  28 May 2015, Thursday), pursuant to s 37ZV(2)(b) the notice was conclusively deemed to have been given on the second working day after it was left there.

22.  There appears to be no directly applicable statutory definition of “working day”, the phrase not being defined in the Immigration Ordinance or in the Interpretation and General Clauses Ordinance (Cap 1).  The August 2021 edition of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme at paragraph 2.1(aj) defines “working day” as any day of the week excluding Sundays, public holidays, gale warning days or black rainstorm warning days as defined in s 71(2) of the Interpretation and General Clauses Ordinance.  However, while the Guide may provide procedural guidance for appeal proceedings before the Board, it does not have the force of law for the purpose of interpreting s 37ZV of the Immigration Ordinance. In Masqood Paul v Torture Claims Appeal Board [2020] HKCFI 1019 at [3], Deputy Judge K W Lung held that in ascertaining the date of service of the Board’s decision by post on the applicant for the purposes of the 3-month time limit under Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), Saturdays and Sundays are not working days.  Again, this does not directly concern s 37ZV.  We also note that under RHC Order 3 rule 4 and Order 65 rule 7, Saturdays are generally not counted for the purposes of service under those rules, though these provisions have no direct application here.

23.  The information available indicates the Board is not open on Saturdays.[7]  Despite this the Board does not seem to have considered whether Saturday should be considered a working day within the meaning of s 37ZV(2).  If Saturday was not a working day, then the 1^st Director’s Decision would be deemed to have been given to the applicant on 1 June 2015, Monday, and the deadline for the applicant to file an appeal would fall on 15 June 2015, Monday, and the appeal filed would actually have been filed in time.

24.  If, on the other hand, Saturday was a working day within the meaning of s 37ZV(2), two working days after 28 May 2015 would be 30 May 2015, Saturday, and the 14-day time limit for filing the appeal would prima facie expire on 13 June 2015, Saturday.  But even so, it does not follow that the applicant’s appeal should be rejected as being out of time if, as mentioned above, the Board is not open on Saturdays and it was not possible for the applicant to “file with the … Board” (as required by s 37ZS(1)) a notice of appeal on 13 June 2015. In fact, the applicant did file a notice of appeal on the next working day, 15 June 2015, Monday.  In these circumstances, it seems to us that as a matter of fairness, the Board should have either treated the appeal as having been filed in time, or allowed the filing of the appeal on 15 June 2015 even if the view was taken that it was technically late, or at the very least considered these possible courses of action.  (In the case of court proceedings, it may be noted that where the last day for filing a document with a “court office” falls on a closure day, which includes a Saturday, the period for filing will automatically be extended to include the next following non-closure day: see s 71(1A) of the Interpretation and General Clauses Ordinance.)

25.  Quite apart from the above, it is not clear why the Board said the notice of appeal that was filed by the applicant in this case on 15 June 2015 was “3 days late”.  On either of the above bases, this is not correct.  It would follow, therefore, that the Board had in any event proceeded on an erroneous calculation of time in arriving at the 1^st Board Decision.

26.  For these reasons, with respect, the 1^st Board Decision refusing to accept the filing of the 1^st Board Appeal was erroneous in law and also vitiated by the failure to take into account the above considerations.

2^nd Board Decision

27.  In his notice of appeal to the Board for the 2^nd Board Appeal, the applicant reiterated his fear that he would be in danger if he were to return to India, and referred to incidents of his brother being kidnapped, severely beaten and threatened by the Akali Dal and the applicant’s other family members being threatened and violently assaulted by the Akali Dal, after the applicant had left India.  The applicant also stated the Akali Dal is still looking for him.  The details as to the subsequent threats to the applicant’s brother and other family members seem to be new evidence not referred to in either of the Director’s decisions, and might well have been incidents that occurred after the Director’s decisions.

28.  As mentioned above, the Board dismissed the 2^nd Board Appeal on the ground that the matter was “res judicata and cannot be re-litigated”.  In our view, the 2^nd Board Decision was also problematic in several respects:

(1)  The 2^nd Board Decision relied on the 1^st Board Decision which, as explained above, was erroneous in law and vitiated by the failure to take into account relevant considerations and which was as such liable to be quashed.  The 2^nd Board Decision is therefore arguably likewise tainted.

(2)  In any event, the Board was wrong in law to regard the matter before it as res judicata.  First, the 1^st Director’s Decision was a decision by an administrative decision-maker, not by a judicial body. The Director’s determination was not an adjudication such as to give rise to res judicata: see Spencer Bower & Handley, Res Judicata (5^th ed), §§2.01-2.02.  Secondly, assuming the Board was a judicial body whose decisions could in principle give rise to res judicata, the 1^st Board Decision was not a decision on the merits.  It was a decision, on a preliminary issue under s 37ZT, to reject the appeal on the ground that it had been filed late.  It did not decide any matter concerning the substantive merits and could not therefore give rise to res judicata on those matters: Spencer Bower & Handley, §§6.01-6.04.  Thirdly, the issue in the 2^nd Board Appeal, namely, whether there was BOR 2 risk based on the matters advanced including the matters submitted by the applicant in his letter to the Director dated 2 February 2017 and in the notice of appeal to the Board for the 2^nd Board Appeal, was different from the questions before the Director and the Board in the first round, and was not therefore precluded by res judicata or issue estoppel from being independently assessed by the Board: Spencer Bower & Handley, §§7.03 & 8.05.

(3)  The Board’s approach in rejecting the 1^st Board Appeal as being late and dismissing the 2^nd Board Appeal as being precluded by res judicata has resulted in the applicant’s appeals being wholly dismissed without any real consideration of the merits of his non-refoulement claim by the Board.

29.  The Judge did not take into account any of the above relevant matters in concluding that there were no errors of law or procedural unfairness in the 2^nd Board Decision.  The Judge also erroneously said (in [16] of the Form CALL-1) that the applicant told the court he had had a fair hearing before the Board.  The fact was that the applicant was absent at the hearing before the Judge.  It follows, with respect, that the Judge’s decision was erroneous.

30.  The above matters were not directly raised by the applicant.  But in granting extension of time, G Lam JA had already pointed out in the court’s letter, which was copied to the Director and the Board, the possibility that the 1^st Board Decision was erroneous in law and that the 2^nd Board Decision was likewise tainted.  The Court of Appeal has a discretion, not to be exercised lightly, to allow new grounds to be canvassed in the interest of justice: see for example, Re MD Zahidur Rahman Manik [2018] HKCA 766 at [13].  In the special circumstances of the present case, we take the view that the applicant’s appeal should be allowed for the reasons set out above.

31.  In the interests of saving time and resources, this Court has written to the Director to canvass whether, if the appeal is allowed, the Director will agree that the Court of Appeal may itself quash both of the Board’s decisions, instead of simply granting leave to apply for judicial review and remitting the application for judicial review to the Court of First Instance.  The Director has very sensibly agreed.

32.  As mentioned above, the applicant’s Form 86 refers to the Board’s decision dated 7 March 2019 but also to the Board’s decision on torture risk, BOR 3 risk and persecution risk.  It is capable of being read as referring to both Board’s decisions in this case.  The court in granting extension of time had raised the issue that the 1^st Board Decision might be erroneous in law.  Both the Director and the Board had decided not to take part in the appeal to this court.

33.  In the light of the discussion above and our conclusion that the 1^st Board Decision was vitiated by public law errors and given the possibility that it was ultra vires if the notice of appeal was in fact filed within time, it would be highly undesirable for this court merely to quash the 2^nd Board Decision without dealing with the 1^st Board Decision in any way, as this would embarrass the Board in dealing afresh with the 2^nd Board Appeal. Accordingly, we consider that both decisions of the Board should be quashed.

34.  For the above reasons, we allow the appeal and make the following orders:

(1)  Leave is granted to the applicant to apply for judicial review of the Board’s decisions dated 31 August 2015 and 7 March 2019.

(2)  On the judicial review, the Board’s decisions dated 31 August 2015 and 7 March 2019 be quashed, and the applicant’s appeals against the Director’s decisions dated 28 May 2015 and 8 February 2017 be remitted to the Board for reconsideration.

35.  We make no order as to costs.

[1]  [2022] HKCFI 2311

[2]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6]  [2022] HKCFI 3433

[7]  as pointed out at [25(iv)] & [59] in Re Asghar Ibrar (HCAL 9/2016, 26 January 2017) for example.