RAZA ATIF v. SLEY WONG, ADJUDICATOR (TORTURE PETITIONS) OF THE PETITION TEAM OF THE SECURITY BUREAU (“THE ADJUDICATOR”)

HCAL 209/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 209 OF 2015

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J U D G M E N T

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1.  Leave was granted for the Applicant to apply for judicial review of the decision of the Deputy Chairperson of the Torture Claims Appeal Board / Adjudicator of the Non-Refoulement Claims Petition Office (“the Adjudicator”) made on 27 July 2015 dismissing and refusing the Applicant’s application to appeal / petition out of time.

BACKGROUND

2.  The Applicant is a Pakistan national. 

3.  On 21 October 2009, he came to Hong Kong via Shenzhen and was arrested.  On the following day, he was referred to the Immigration Department for investigation.  On 23 October, he lodged his claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). 

4.  His claim was considered by the Immigration Department.  By a Notice of Decision dated 23 April 2015, the Director of Immigration (“the Director”) rejected the claim. 

5.  On 11 May 2015, the Applicant lodged an appeal against the decision of the Director.  The Notice of Appeal was filed on 11 May 2015, after expiry of the 14 days limit.

6.  By the Decision dated 27 July 2015, the Adjudicator refused and dismissed the Applicant’s application for leave to appeal / petition out of time.

RELIEF SOUGHT

7.  The relief sought by the Applicant includes the following :

(1)   an Order of Certiorari to bring up and quash the said decision of the Adjudicator;

(2)   such further or other relief the court may provide; and /or

(3)   an order for costs.

GROUNDS OF REVIEW

8.  The Applicant was represented by Ms Queenie Lau.  At the hearing, Ms Lau clarified and confirmed that the main grounds of review which the Applicant was relying on were : 

(1)  The Adjudicator erred in rejecting the Applicant’s explanation of lack of financial resources for his delay in filing his Notice; and

(2)  The Adjudicator erred in purporting to consider the merits of the Applicant’s appeal;

(3)  Alternatively, assuming it was permissible to consider substantive merits, such consideration was manifestly inadequate;

9.  Originally, the following grounds were also set out : the Adjudicator failed to exercise his duty to act fairly; and that he failed to take into account that the Applicant was not legally represented and has insufficient legal knowledge in the Immigration Department’s guidelines. Ms Lau clearly stated that substance in relation to these grounds can readily be subsumed in the submission and consideration of the other grounds in particular Ground 1.

DISCUSSION AND CONSIDERATION

10.  Ms Lau accepted that it was a case of late filing of Notice and the only question is whether the Adjudicator was erroneous in refusing leave to appeal / petition out of time.

11.  In the Decision, the Adjudicator said :

“The Notice of Decision[1] was dated 23 April 2015. … (it) stated ‘You must file your notice of appeal/petition in the enclosed form accompanied by a copy of this notice within 14 days from the date of this notice. … The Notice of Appeal / Petition was received on 11 May 2015. … The deadline for filing the Notice of Appeal / Petition falls on 8 May 2015 hence he was late in filing the Notice of Appeal / Petition. … it must be strictly adhered to unless there are exceptional circumstances which justified the delay.”

12.  He went on to consider the explanation offered by the Applicant.  The Applicant stated in the Notice of Appeal / Petition that : “As I’m an asylum seeker in Hong Kong and don’t have any financial resources.  I didn’t have any money on me to travel to immigration and submit the appeal documents.  This caused the delay in this submission.”

13.  Section 37ZT(3) of the Immigration Ordinance (“the Ordinance”)[2] provides that :

“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 …”

14.  Section 37ZT(1) and (2) of the Ordinance are relevant :

“(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 decided, 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.”

15.  As it is provided in section 37ZT(2) that in deciding the matter the Board may only take account of the statement and any accompanying documentary evidence together with any other relevant matters of fact within the knowledge of the Board, it may well be that with the information which the Applicant had provided he failed to satisfy the Adjudicator that “by reason of special circumstances, it would be unjust not to allow the late filing”.

16.  Judicial review, however, is not a further or alternative appeal procedure.  As said by Lam J, as he then was, in TK v Jenkins[3], in the context of judicial review of a decision of an adjudicator, the crucial issues are :

(1)  whether the adjudicator committed any error of law in his decision;

(2)  whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and

(3)  whether the substantive decision satisfied the enhanced Wednesbury [4] test.

17.  I have to conduct, as said by the Court of Final Appeal in Secretary for Security v Prabakar[5] rigorous examination and anxious scrutiny of the reasons of refusal to ensure that the required high standards of fairness have been met.

18.  The Adjudicator said the time requirement must be strictly adhered to.  I entirely agree.  The provision in section 37ZT(3) of the Ordinance is that late filing may be allowed only when it is satisfied by reason of special circumstances it would be unjust not to allow late filing. Leave to allow late filing should not be lightly granted.

19.  The Adjudicator found that there was no exceptional circumstance that justified granting of leave to file the Notice of Appeal / Petition out of time and he gave the following reasons :

(1)   The explanation of the Applicant “was not supported by any documentary evidence” and “Section 5 (of the Notice of Appeal / Petition) has not been complied with”[6]. Section 5 states that “you must also submit relevant documentary evidence in support of such reasons”; and

(2)   “There is no substance in his explanation that he did not have any money to travel to Immigration Department and that he did not have any financial resources because if he did not have money how could he have money to travel in order to file this Notice of Appeal / Petition. Besides, the asylum seekers are subsidized by welfare organisations”[7].

20.  Both reasons were criticised by Ms Lau.

21.  As regards the reason of lack of documentary evidence, Ms Lau submitted that whilst s37ZT(1)(b) provides that a late Notice of Appeal / Petition must include a statement of the reasons for failing to file in time which “must” be accompanied by “any documentary evidence relied on in support of the reasons”, it is wrong to construe the provision as a mandatory requirement for documentary evidence to support every reason put forward to explain the late filing.  The effect of this provision is only that if the applicant wishes to rely on any documentary evidence in support of his reason for delay, the documentary evidence must accompany the Notice.  In other words, the documentary evidence must be submitted together with the Notice. The provision, however, does not make documentary evidence mandatory in this type of application.

22.  In my judgment, what must be included in the application for late filing is a statement of the reasons for failing to file the notice within time.  Documentary evidence is not something which must be included.  However, if the applicant intends to rely on any documentary evidence in support of his application, he must submit such evidence together with the statement.  This is an important requirement which avoid undue delay in the decision making process in particular as section 37ZT(2) provides that the process is a preliminary decision without a hearing and that the only material the Adjudicator may take into account in his decision making on the matter are the “statement”, any accompanying documentary evidence and relevant fact known to him.

23.  If the situation is that the applicant is reasonably expected to fortify his explanation with documentary evidence, which he is reasonably expected to be in possession of or in a position to obtain, lack of documentary evidence is a factor which the Adjudicator is entitled to have regard to in his consideration.

24.  However, it does not mean that if the Applicant does not provide documentary proof of the application, the application should be dismissed.

25.  In the present case, what the Adjudicator stressed was that section 5 of the Notice of Appeal / Petition has not been complied with.  Stipulations in such Notice does not enjoy the same status as statutory provision.  As said earlier in paragraph 22 above, the Ordinance does not impose a mandatory requirement to submit documentary evidence, in my judgment the Adjudicator erred in placing undue weight on the stipulations in the Notice.

26.  Ms Lau also criticised the finding of the Adjudicator that there is no substance in the explanation of lack of money as speculative and / or not based on evidence.  The Adjudicator made such finding on the basis that the Applicant did have the money to travel to file the Notice of Appeal and he was subsidized by welfare organisations.  Again the above are matters which the Adjudicator was entitled to take into account.  The submission of Ms Lau was that even though the Applicant had money at a later time it does not necessarily mean that his claim of lack of money at an earlier time should automatically be rejected.  She also stressed that this applies even though the Applicant was under subsidy.  I agree that the two matters mentioned by the Adjudicator without more did not provide sufficient basis for the Adjudicator to make the finding.

27.  In my judgment, the Adjudicator was erroneous in rejecting the Applicant’s explanation for his delay for the reasons he had stated.

28.  I find Ground 1 made out.

29.  As regards Ground 2, it was the submission of Ms Lau that the Adjudicator erred in having considered the substantive merits of the Applicant’s case. 

30.  In Satbinder Singh [8], I have expressed a preliminary view with caution that it does not appear to be right that substantial merit can never be taken into account.  I have such view because if so applicants with obvious merits will be deprived of an appeal because of time requirement. 

31.  In ASM [9]DHCJ Wilson Chan (as Wilson Chan J then was) observed that : “… as a matter of principle, there seems to be no good reason why a decision maker cannot in a suitable case have regard to the underlying merits …”[10]

32.  In the present case, the Adjudicator adopted his finding on the substantive merits of the case as one of the reasons for his rejecting of the application of late filing.  The submission of Ms Lau was that it is impossible to have a proper assessment of the merits pursuant to the requisite high standard of fairness as this decision exercise took the form of a preliminary determination without a hearing.  In an appeal proper, the proceeding is in the form of re-hearing and if necessary the Adjudicator will have to make his own enquiries.  A preliminary determination under s37ZT does not allow this to be done.  It is therefore unfair for the Adjudicator to take into account substantive merits of the Applicant’s case.

33.  There is yet any authoritative decision on the point.  In the light of my finding as stated in paragraphs 25 and 27 above, the result of this application does not depend on a ruling on this point.  Indeed it does not appear to me to be an appropriate case to make a ruling as the Court did not have the benefit of full argument in this hearing where only the Applicant was present.

34.  As an alternative ground, it was the submission of Ms Lau that the analysis and consideration of the Adjudicator was far from adequate if it had been legally right for the Adjudicator to take into account merits in the case.

35.  As regards assessment of the merits, the Adjudicator has these to say :

“I have also carefully considered the Notice of Decision. I find the Immigration Officer had analysed his evidence in detail. The Immigration Officer had a detailed breakdown of the evidence before coming to the conclusion as he did in respect of each of the Appellant’s/Petitioner’s claim under risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, 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 and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees. I cannot find fault with the decision of the Immigration Officer.”

36.  If the Adjudicator was to take into account assessment of the merit, in his consideration he has to bear in mind that an appeal of this nature is in the form of re-hearing and the appropriate standard of consideration.  What were stated in the Reason falls short of expectation.

37.  In the concluding sentence of the Decision, the Adjudicator said ; “for all the reasons above[11] this leave to appeal / petition out of time is refused and dismissed.”  It is an indication that his assessment in the merits are one of the reasons for refusal.  In such case the decision of refusal has based on a finding not properly made.

38.  It was also a submission of Ms Lau, though she did not rely on it heavily, that the Adjudicator erred in not taking into consideration that the Applicant was not legally represented after the Decision of the Director and that he had insufficient legal knowledge in the Immigration Department’s guidelines and this could contribute in late filing of the Notice of Appeal.

39.  There is no legal requirement that the Adjudicator should do so.  In the particular circumstances of the present case, I do not consider the Adjudicator can be said to have erred in law or unreasonable in the Wednesbury sense even if he did not take the matter into account.  The time requirement is an easy concept and is plainly and clearly expressed in both the Ordinance and the Notice of the Director.  There is nothing in the present case to indicate that the Applicant might have difficulties in comprehending the requirement. 

CONCLUSION

40.  Based on my finding as stated in paragraphs 25 and 27 above, I make an order of certiorari to bring up and quash the Adjudicator’s decision of refusing and dismissing the application for leave to appeal out of time.

COSTS

41.  The only costs order which the Applicant sought is that the applicant’s own costs be taxed in accordance with Legal Aid Regulations.

42.  I make the costs order sought.