BAINS CHARANJIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2406/2018

[2020] HKCFI 1277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2406 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 be granted.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 7 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant failed to turn up at the scheduled time on 13 December 2019. I shall proceed to consider his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting “Immigration Department” and replacing it with the Board as respondent and by deleting “Immigration Department, Torture Claims Appeal/Petition Board” and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is an Indian national. He came to Hong Kong on 21 August 2005 as a visitor and was permitted to stay as such until 23 August 2005. He overstayed and was arrested on 24 May 2006. He was referred to the Immigration Department for investigation. On 27 May 2006, he lodged his non-refoulement claim. He was released on recognizance. During the period of 15 July 2006 and November 2017, he stayed in Hong Kong and committed various offences. He was charged, convicted and sentenced to imprisonment.

5.  He claimed that if refouled, he would be harmed or killed by Mr. Gurdev Singh because he was unable to repay the loan to him.

The Director’s Decision

6.  He had made Torture claim protection before and his application was rejected by the Director. He did not appeal the Direction’s decision. The Director considered his application in relation to the following risks:

a.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

b.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

c.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By Notice of Decision dated 29 December 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as he alleged was low [21]; that state protection was available to him [25] and internal relocation was an option open to him [28]. His claim under BOR2 risk was not established.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He filed his Notice of Appeal on 10 May 2018. The Board found that he was 3 months and 24 days late.

9.  The Board considered The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122. The Court of Appeal in this case considered three stages for the application:

a.     seriousness or significance of the delay;

b.     any good explanation for the delay; and

c.     all the circumstances of the case, applying the two factors in CPR rule 3.9, i.e. (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders.

10.  The applicant gave the explanation that he was arrested by police on 6 January 2018 and was imprisoned. However, the Board did not accept his explanation. The Board refused to extend time for him to file the Notice of Appeal.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 30 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

13.  His application for leave to apply for judicial review of the Board’s Decision is also late. The Board’s Decision is dated 7 June 2018. The deadline for filing his application is 7 September 2018. His application is therefore one month and 23 days late.

14.  In Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28, the Court of Appeal held that the applicant cannot proceed with the application for leave for judicial review without extension of time for him to file his application out of time.

15.  The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 held that this Court has to consider the merits of his case before considering whether time should be extended for him to file his application.

16.  The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 held at §§43-45:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, Ex parte Doody [1994] 1 AC 531 at 560 D-G.

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 parte Bugdaycay [1987] 1 AC 514 at 531 E-G.  If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

17.  There are three observations in this case.

18.  First, the applicant explained that he was being detained since 6 January 2018. The Board gave the explanation that it did not accept his explanation because he was represented by a duty lawyer. However, it is quite obvious that he was no longer legally represented for his appeal. It is also usual practice that Duty Lawyer Scheme will not represent the applicants at the appeal stage unless there are justifiable reasons. If he was being detained, obviously he would be unable to file his Notice of Appeal with the Board. It is arguable that, applying the principles in Begum, the applicant might have an acceptable explanation and to reject his explanation without sufficient reasons might render the Board’s decision unreasonable.

19.  Second, CPR rule 3.9 of the UK practice does not apply in Hong Kong. CPR and Civil Justice Reform (“CJR”) in Hong Kong are not identical, at least the objectives, one being overriding and the other underlying. More importantly, Order 1A, rule 2(2) provides:

“In giving effect to the underlying objectives of these rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

20.  It seems that the Board had not made a distinction of the CPR and the CJR before it decided to apply CPR, rule 3.9 to this case.

21.  Third, the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“8. If the application for appeal to the Board is late, the applicant has to apply for late filing of the notice, with reasons in support of the application. …

17. Where a notice of appeal is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

18. Where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application. …

20.     It was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

22.  There is no evidence that the Board had considered the merits of the applicant’s case.

23.  I find that it is at least arguable that the applicant may succeed in his application for judicial review of the Board’s Decision.

CONCLUSION

24.  I therefore extend time for him to file Form 86 and grant leave to the applicant to apply for judicial review. Accordingly, the applicant should take out the application for judicial review in accordance with Order 53, rule 5 of the Rules of the High Court.

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