GURSEWAK SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 338/2021

[2021] HKCFI 1321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 338 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 9 October 2020granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of India who first raised a non-refoulement claim by way of a written signification on 2 October 2015 to the Immigration Department, and was subsequently released on recognizance pending the process of his claim.

2.  On 22 June 2016 the Applicant in writing requested to cancel his non-refoulement claim as it was safe for him to return to his home country, and of which the Immigration Department by a letter dated 29 June 2016 acknowledged and confirmed that no further action would be taken of his claim.

3.  However, 3 months later on 30 September 2016 the Applicant requested to re-open his claim as he still faced threats in his home country.

4.  By a letter dated 18 October 2016 the Director of Immigration (“Director”) acknowledged the Applicant’s request and commenced processing his claim, including a briefing session conducted with the Applicant on 5 June 2018 during which he was provided with a Notice to Persons Making a Non-refoulement Claim (“Notice”) and a blank Non-refoulement Claim Form (“NCF”) with a written request for him to return his completed NCF to the Immigration Department within 28 days on or before 24 July 2018, and that failing which his claim would be treated as withdrawn, all of which the Applicant signed an acknowledge of receipt that he fully understood the requirements.

5.  The Applicant at the briefing session also made an application for representation from the Duty Lawyer Service (“DLS”) which on the following day on 6 June 2018 confirmed that they acted for him in his claim.

6.  By a letter dated 26 June 2018 the Director reminded the Applicant via DLS to return his completed NCF by 24 July 2018.

7.  On 23 July 2018 DLS informed the Director that they had no further instruction to act for the Applicant.

8.  As no completed NCF had been returned by the Applicant by 24 July 2018, the Director on 25 July 2018 sent a Notice of Deemed Withdrawal of Non-refoulement Claim on Failure to Return Completed Non-refoulement Claim Form to the Applicant at his last reported address informing him that his claim had been treated as withdrawn.

9.  On 3 October 2018 the Applicant in writing requested to re-open his claim under Section 37ZG(3) of Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”), and provided the following reasons in his subsequent letters dated 4 January 2019 and 21 January 2019:

“ My name is GURSEWAK SINGH and my Prison no, is 409396. Sir the non-refoulement claim which I have lodged on 30 September 2016 is true and the non-refoulement claim form you are talking about is not under my knowledge because I have not received any letter or non-refoulement form from any Duty Lawyer Service, so as you have attention me about section 37ZG(3) Part VIIC of the Immigration Ordinance paragraph 61 I am giving you the satisfying evidence and the reason why I was unable to return the completed NCF form and this is all the detail reason, so now I would like to request you to subsequently treat my case in my behave and consider my case and re-open it.”

“ At first I apologize for my failure to return the completed NCF before 24 July 2018, it was happen due to sudden change of residence shortly before your letter issued on 26 June 2018, and I did not get any acknowledgement from Duty lawyer about NCF form, and unfortunately I got arrested on 28 July 2018 and sentenced till 8 January 2019. Therefore, I never received any NCF to completed, neither got any help from duty lawyer regarding my non-refoulement claim case, and at present, I am detain in CIC since I discharge from prison (8/1/19) and I would like to apologize for these serious error, and requesting your respected authority to give me a chance to complete my NCF afresh, I would also appreciate if your office could provide me Duty lawyer service to assess my claim and help me through the legal process. I will remain highly obliged for your kind assistance on my request. Thanking yours.”

10.  By a Notice of Decision dated 14 February 2019 the Director refused the Applicant’s request to re-open his claim upon finding that previous ample opportunities and sufficient time had already been given to him to return his completed NCF, that although he was subsequently arrested by the police on 31 July 2018 and was convicted on 6 September 2018 for theft and sentenced to prison for 8 months, and was upon his discharge on 8 January 2019 immediately transferred to the Immigration Department, it was satisfied that the Applicant had provided sufficient evidence that due to circumstances beyond his control that he had been unable to return his completed NCF as required under Section 37Y(2) of the Ordinance.  

11.  On 20 February 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not conduct any oral hearing and proceeded to deal with his appeal in his absence and on paper. On 9 October 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board agreed with the Director that the Applicant had not provided sufficient evidence in writing to support his application to re-open his claim and that the Director was justified to refuse his application.   

13.  On 12 March 2021 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 Adjudicator did not place any weight on COI; and

(2) that the Adjudicator failed to conduct any oral hearing for his appeal.  

14.  The Applicant did not request any oral hearing for his application, but by then he was in fact already out of time with his Form 86, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.  As the last day of the three-month period for him to file his Form 86 fell on 9 January 2021, the Applicant was therefore more than 2 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKCA 393.

16.  In the Applicant’s case, a delay of more than 2 months must be considered as significant, for which he did not provide any explanation in his Form or supporting affirmation, but it is noted that he was then (and still is) being detained at the Castle Peak Bay Immigration Centre (“CIC”), in which there would no doubt be the inevitable inconveniences and restrictions as to incoming and outgoing mails as well as access to legal assistance, and while he was then still able to make representations to the Director in respect of his request to re-open his claim, given that he is unrepresented, I propose to focus on the merits, if any, of his intended application with reference to his proposed grounds.     

17.  The first ground can in fact be easily dismissed as wholly irrelevant in the absence of any details or particulars or elaboration from the Applicant as to why it would be necessary or relevant to consider any COI in the Board’s consideration of his appeal against the Director’s refusal to re-open his claim due to his failure to submit his completed NCF, and as such I am unable to see any merits in this complaint of the Applicant.

18.  As for his second ground that the Board failed to conduct any oral hearing for his appeal, it is of course for the Adjudicator to decide whether or not to hold such a hearing to determine the appeal having regard to the materials before him and the nature of the issues raised, and that the question of fairness in relation to not giving an oral hearing has been comprehensibly considered by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, in which Cheung CJHC (as he then was) set out the general principles governing oral hearing as a matter of procedural fairness, as there is no absolute entitlement to oral hearing, which is ultimately a question of fairness looking at the overall circumstances (see [20] – [36]).   

19.  In the Board’s Decision the Adjudicator never provided any reason for not holding an oral hearing for the Applicant’s appeal, but in any event he was required, as noted above, to have regard to all the materials before him, which were the Director’s decision and the Applicant’s Notice of Appeal, but it appears that he only focused entirely on the former including reciting from it the background of the case ([2] – [10]), the consideration by the Director ([11]), and the Director’s Decision ([12]), before arriving at his own decision ([15] – [19]), but without any reference to the Applicant’s Notice of Appeal, or more importantly his grounds of appeal as set out in Section 2(B) of the Notice.

20.  Whether or not those grounds of the Applicant carry any merits in his appeal, and in the absence of any oral hearing, the Adjudicator should have in all procedural fairness properly considered them and explained in the Decision why they were not accepted as sufficient evidence that due to circumstances beyond the Applicant’s control to return a completed NCF as required for his claim.

21.  In fact, high standards of fairness require that a decision-maker must do so in this type of applications, as was so held by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 as follows:

“44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved”. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45. It is for the Secretary to make such a determination. The courts should not usurp that official’s responsibility. But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met. R v Home Secretary, ex p Bugdaycay [1987] 1 AC 514 at p.531 E-G. If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”        

22.  As noted above, while deciding not to hold any oral hearing for the Applicant’s appeal, the Adjudicator did not appear to have taken into account or consideration the Notice of Appeal or its grounds of appeal, nor did the Adjudicator appear to have explained in the Decision why they were not accepted as sufficient evidence that due to circumstances beyond his control that the Applicant had not been able to return his completed NCF as required, and hence it seems to me reasonably arguable that in the Adjudicator’s failure to do either, it was procedurally unfair not to hold an oral hearing for the appeal, and/or that high standards of fairness had not been met in his decision to refuse to re-open the Applicant’s claim or to dismiss his appeal.     

23.  In the premises, and for these reasons, I am of the view that there are merits in the Applicant’s intended application for judicial review of the Board’s decision, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, and accordingly I extend time to the Applicant’s application, and grant leave for him to do so on the bases as stated above.

24.  It follows that in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, the Applicant shall file an originating summons within 14 days of this decision, and 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