RE ASGHAR IBRAR

HCAL9/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 9 OF 2016

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J U D G M E N T

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Introduction

1.  The applicant is a Pakistani national.  He arrived at Hong Kong from Shenzhen by land on 18 February 2015.  He used a valid Pakistani passport but was refused entry.  He lodged a non-refoulement claim on the same day.  He was then detained in Castle Peak Bay Immigration Centre (“CIC”) .  He was released on recognizance on 27 July 2015.  

2.  The applicant alleged that he refused to join the Pakistani Muslim League (“PML-N”).  He feared that he would be harmed or killed by members of PML-N if returned to Pakistan.  

3.  The Director of Immigration (“Director”) rejected his non-refoulement claim on 17 June 2015.  The claimant had 14 days, after the notice of decision was given to him or his legal representative, to file a notice of appeal to TCAB^[1]. In the present case, the deadline should be 2 July 2015. 

4.  According to TCAB, they received the applicant’s partially completed notice of appeal on 6 July 2015.  It was out of time for 4 days already.  They returned it to the applicant for further action as there was no explanation for late filing and it was not signed.  They eventually received the completed notice of appeal on 14 July 2015.  By then, it was 12 days late.

5.  In the completed notice of appeal finally accepted by the TCAB^[2], the applicant explained the reasons for late filing in section 5:

“ I received decision at on 26 June 2015. There were not enough time by I had filled the petition and submit before the date of expiry. May be there is some problem in postal service. And also there was holiday on 27^th and 28^th of June 2015. So, I give my appeal petition on 30^th of June in which my deadline was not finished. So, therefore I apologise for the inconvenient cost and hope that you will accord priority to my appeal petition. I would be thankful to you from the depth of my heart for your assist.”

6.  In his reasons for decision dated 31 December 2015, the Adjudicator pointed out that the unsigned, partially completed notice of appeal only reached the TCAB on 6 July 2015 — 4 days after the expiry of the 14-day-appeal period^[3]. It was returned to the applicant for further action.  

7.  The Adjudicator opined that the partially completed notice of appeal was null and void.  There was no explanation of the delay.  There was no supporting documentary evidence.  It was not signed by the applicant. 

8.  The Adjudicator found that there was inordinate delay.  There was no extenuating circumstance.  He rejected the late filing of the notice of appeal on the following reasons:

(i) As evidenced by the postal chop, the TCAB received the partially completed notice of appeal on 6 July 2015.  

(ii) Though that partially completed notice of appeal was dated 30 June 2015, this did not mean that it was filed on the same date. 

(iii) The date on which the Duty Lawyer Service gave the Director’s decision to the applicant was immaterial.  

(iv) Had the applicant posted the notice on 30 June 2015, it could have reached the TCAB much earlier. 

(v) The applicant had written 11 pages of grounds of appeal.  This indicated that he had sufficient time. 

9.  The applicant sought leave for judicial review of the Adjudicator’s decision on 13 January 2016.

10.  On 6 April 2016, legal aid was granted.  Counsel was assigned on 5 August 2016.  Amended Form 86 was filed on 29 September 2016. 

11.  This court granted leave on 5 October 2016.  A hearing was held on 6 December 2016. 

12.  The TCAB was initially invited to attend the hearing as putative respondent.  By a letter dated 23 November 2016, they indicated that they would take a neutral role.  They would abide by the decision of this court.  

13.  The Director was also invited to attend the hearing as interested party.  By a letter dated 25 November 2016, the Director requested to be excused from the hearing.  The Director would take a neutral stand.  The Director however filed affidavits from two officers to explain the practice and procedures in the CIC and the non-refoulement claim scheme.  The two affidavits turned out to be very helpful in deciding this judicial review.

14.  This court excused the attendance of the Director and the TCAB.

Judicial Review

15.  Ms Karen Lau, counsel for the applicant, argued on the following grounds. 

(i) The TCAB had unlawfully fettered his discretion.

(ii) The TCAB failed to assess the credibility of the applicant. 

(iii) The TCAB was unreasonable or irrational in the public law sense. 

(iv) The TCAB failed to meet the greater care and duty owed to the applicant who was unrepresented. 

Ground (i)  

16.  Ms Lau argued that the applicant handed in the partially completed notice of appeal to the staff of CIC either on 30 June 2015^[4] or 2 July 2015^[5].  On either date, it was within time.  This explained why the applicant did not fill in section 5 — reasons for late filing. 

17.  The TCAB received the partially completed notice of appeal on 6 July 2015.  Ms Lau argued that the TCAB should have counted this date as the date of filing.  Instead, the TCAB returned the document for the applicant to rectify.  It was until 14 July 2015 that the TCAB received the completed notice of appeal again.  The latter date was then counted as the date of filing.  

18.  Ms Lau argued that if 6 July 2015 was counted as the date of filing, there was no inordinate delay.  She also submitted that an unsigned notice of appeal was not null and void. 

19.  In my view, section 37ZS (2) of the Immigration Ordinance provides that a notice of appeal must be in the form specified by the Chairperson of the TCAB and must be accompanied by a copy of the notice of the decision being appeal against. 

20.  Needless to say, a notice of appeal must be duly completed according to the requirements therein.  A notice of appeal which leaves out essential information or unsigned is invalid.  The appeal should not be processed until these errors are rectified.  

21.  The fact that the applicant was within time when he filled in the notice of appeal is irrelevant.  The relevant date must be the date on which the notice of appeal reached the TCAB.  In case it was by post, Practice Direction 19.2 of the High Court governed the computation of the date of effective service.^[6]

22.  In this case, the applicant might be able to explain part of the delay.  He might not know the special rules for computation of time in these proceedings.  It is, however, unarguable that 6 July 2015 should be counted as the date of filing.  In my judgement, the date of filing should be 14 July 2015 when the TCAB received the rectified notice of appeal. 

23.  I reject this ground. 

Grounds  (ii) — (iv)  

24.  Having listened to the submission of Ms Lau, I think these three grounds should be dealt with together. 

25.  Ms Lau argued as follows:

(i) The applicant received the Director’s decision on 26 June 2015 from the Duty Lawyer Service.  27 June 2015 was a Saturday.  28 June 2015 was a Sunday.  There was no postal service in CIC on both days. 

(ii) The applicant requested the welfare officer of CIC to post the partially completed notice of appeal on 30 June 2015.  

(iii) Given that 1 July 2015 was a public holiday.  There would not be any postal service in CIC.  This might be the reason that the partially completed notice of appeal was only posted on 2 July 2015.^[7]  

(iv) The partially completed notice of appeal reached the TCAB on 6 July 2015 according to the time chop.  It might have reached TCAB earlier as 4 July 2015 was a Saturday and 5 July was a Sunday.  TCAB was not open on both days. 

(v) As the applicant was in detention in CIC, it would be time consuming for him to seek assistance from the welfare officer. 

(vi) The applicant had no knowledge of the time needed for postal delivery of documents. 

(vii) The delay was compounded by the return of the partially completed notice of appeal for rectification. 

(viii) The applicant was detained in CIC since arrival in Hong Kong.  It would be difficult for him to process his appeal according to the rules. 

26.  Ms Lau criticised the Adjudicator for failure to consider the above.  He failed to apply the high standard of fairness as required in Prabakar ^[8].  His decision was unreasonable and irrational. 

27.  In exercising the discretion whether to extend time, Ms Lau urged this court to adopt the approach set out in Denton v White [2014] 1 WLR 3926.

The English cases

28.  Denton is a consolidated appeal of three cases.  They all concerned the application for relief from sanctions for failure to comply with case management orders pursuant to CPR r 3.9 (1).  The facts are not relevant for our present purposes.  The Court of Appeal in England explained the approach as follows:

(i) The first stage is to identify and assess the seriousness or significance of the failure to comply.  If a breach is not serious or significant, then relief from sanctions will usually be granted and it will usually be unnecessary to spend much time on the second or third stages. 

(ii) If the breach is serious or significant, the court should consider why the failure or default occurred in the second stage. 

(iii) In the third stage, the court will consider “all the circumstances of the case, so as to enable it to deal justly with the application” 

(iv) The two factors - (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders - are of particular importance and should be given particular weight at the third stage when all the circumstances of the case are considered. 

29.  Ms Lau accepted that Denton was a case concerning civil litigation.  She urged this court to apply the same approach in public law cases.  She relied on R (Hysaj) v Secretary of State for the Home Department [2014] 1 WLR 2472.  

30.  In Hysaj, the appellant came to England in 1998 seeking asylum.  He was accepted as a refugee and was granted indefinite stay.  He was granted naturalisation in 2004.  In 2008, the Secretary of State discovered that the appellant used a false date of birth in order to pass as a minor and falsely alleged that he was persecuted in Kosovo.  The Secretary for State served notice for a deportation order.  The appellant applied for judicial review.  The Administrative Court held against the appellant ruling that the citizenship was obtained by impersonation.  

31.  The appellant in Hysaj was 42 days out of time in filing the notice of appeal.  The main reasons for the delay were: (1) the appellant had to wait for the legal aid certificate for appeal; (2) after the judgment was handed down, parties agreed to deal with the application for permission to appeal at a later date by a consent order.  Both parties mistook that extension of time to appeal was implicit.  In fact, time started to run from the date of the judgment.  Parties failed to apply for extension of time though they could have done so. 

32.  The Court of Appeal in England applied the approach in Denton. Moore-Bick LJ considered the authorities and pointed out that the Court of Appeal had equated applications for extensions of time for filing a notice of appeal with applications for relief from sanctions as the implied sanction in the former — the loss of the right to pursue an appeal — showed that the two were analogous.  His Lordship held that an application under CPR r 3.1(2)(a) for an extension of the time for filing a notice of appeal should be approached in the same way and with the same rigour as an application for relief from sanctions under CPR r 3.9. 

33.  His Lordship disagreed that there should be a special regime for public law cases.  However, the importance of public law issues could be taken into account at the third stage.  His Lordship stressed that lack of funds should not be a good reason for delay.  Likewise, a litigant is unrepresented should not be a good reason too.  His Lordship opined that in most cases the merits of the appeal should be irrelevant.^[9]

34.  Moore-Bick LJ found that the delay was serious but not significant as it would not affect the progress of the appeal.  As there were professionals to handle the appeal, ignorance of the rules was not a good reason for the delay.  However, His Lordship found that the delay would not prejudice the Secretary for State who understood (though mistakenly) that the effect of the consent order was to stop time running.^[10] 

The position in Hong Kong

35.  In Hong Kong, there are similar Rules of the High Court (“RHC”) which cover the application for relief from sanction as CPR r 3.9 ^[11] in England. 

36.  Under O 2 r 4, RHC, where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days of the failure.^[12]

37.  Under O 2 r 5 (1), RHC, on an application for relief from any sanction imposed for a failure to comply with any rule or court order, the Court shall consider all the circumstances.  

38.  The opening words of CPR r 3.9 (1) and O 2 r 5 (1) are substantially the same.  However, O 2 r 5 (1) sets out some relevant factors for the Court’s consideration. ^[13]  

39.  The Court of Appeal in Hong Kong had considered the principles on the exercise of discretion in an application for extension of time in The Decurion [2012] 1 HKLRD 1063.

40.  In The Decurion, the defendant sought leave to extend the time for filing its defence.  It was refused by the Court of First Instance.  In allowing the appeal, the Court of Appeal held that the plaintiff was not prejudiced by an extension of time.  To refuse to give an extension of time would deprive the defendants of a substantial defence.  The Court allowed the defendant 14 days to file its defence.  In giving judgment for the Court, Cheung JA commented:

“11(1) It is clear that the applicable principle in deciding whether time should be extended is to look at all relevant matters and consider the overall justice of the case. A rigid mechanistic approach is not appropriate. There are two conflicting principles at play. First, a party being required to observe the procedural rules, the default of which may result in judgment being entered against it. Second, a party should not be deprived of an adjudication on the merits due to a procedural default unless there is prejudice to the other party which cannot be compensated by costs. These two principles are not absolute. A rigid application of the first principle may lead to dismissal of actions without consideration of whether the defendant has been prejudiced by the default. But, the Court has treated the existence of such prejudice to be crucial and often decisive. Likewise a rigid application of the second principle without exception may enable a wealthy litigant to flout the rules. The resolution to these two conflicting principles is to consider all the circumstances of the case and not confine the decision to the application of a universally applicable rule of thumb.

11(2) I do not consider this approach has been drastically changed by the introduction of the Civil Justice Reform in Hong Kong since 2 April 2009. An expeditious disposal of a case has to be considered together with the equally salutary objective of ensuring fairness between the parties.” ^[14] (my emphasis)

Should TCAB follow the civil practice?

41.  Having considered Denton, Hysaj and The Decorion, I respectfully agree with the reasoning in these cases.  However, all of them are appeals concerning court proceedings in which specific rules apply.  In the case of TCAB, it is not a court and the RHC are not applicable.  It would not be appropriate to apply those authorities directly to TCAB.  Further, without the benefit of a full argument, I do not think that it is appropriate for this court to decide the issue in this case. 

42.  I therefore decline to apply the 3-stage-approach set out in Denton. 

The approach in TCAB

43.  For appeals to TCAB, an appellant must file a notice of appeal within 14 days after notice of the Director’s decision is given to him.^[15]

44.  In case of late filing, an appellant must include a statement of reasons and documentary evidence in the notice of appeal.^[16]

45.  TCAB may allow late filing if by reasons of special circumstances it would be unjust not to do so.  In making this decision, TCAB may only consider the reasons given by the appellant and any other relevant matters of fact within the knowledge of TCAB.^[17] 

46.  The Immigration Ordinance is silent in several aspects: the meaning of special circumstances; the factors to be considered, and the ambit of ‘the other relevant matters of fact within the knowledge of TCAB’.  

47.  For the meaning of special circumstances, it is understandable that the Immigration Ordinance leaves it to the discretion of the TCAB.  Any attempt to define this term may cause more problems. 

48.  As to relevant factors, it is difficult to be exhaustive.  I venture to suggest some subject to s 37ZT (2): the importance of expedient disposal of appeals; the reasons for the late filing; the length by which an applicant is out of time; whether the application for late filing is promptly made; whether an applicant is in custody; other relevant personal circumstances of the applicant etc.  

49.  Section 37ZT(2)(b) allows the TCAB to consider any other relevant matters of fact known to them.  I do not think this subsection meant that the TCAB should sit back and limit its mind to the documents before them.  While this subsection does not create a positive duty to inquire, high standard of fairness may warrant some inquiry to clarify ambiguities apparent to the TCAB.  The nature and extent of this kind of inquiry depend on individual cases.  I anticipate that it would only be necessary in very limited circumstances.  That said, I must stress that it is always the burden of the applicant to explain the late filing with supporting evidence.  

50.  In my view, in the exercise of the discretion whether to allow late filing under s 37ZT(3), the TCAB shouldlook at all relevant matters subject to s 37ZT(2)(b) and consider the overall justice of the case.  A rigid mechanistic approach is not appropriate.  An expeditious disposal of a case has to be considered together with the equally salutary objective of ensuring fairness.  

51.  I echo the comments of Cheung JA in The Decurion cited above. 

Application of this approach to the present case

52.  For the present case, the TCAB must assess the situation bearing in mind that the applicant was in CIC at the material time.  He would be under some strict disciplinary regime as described in the affidavit of Ms Cheng Wai Yan, Immigration Officer of CIC.^[18]   

Mailing the notice of appeal—sub-paragraphs (i) and (iii) of paragraph 10 of the Adjudicator’s decision. 

53.  The applicant claimed that he signed the notice of appeal and made a written request to send it on 30 June 2015^[19]. However, according to the record of CIC, their staff only received the request at 8:45 am on 2 July 2015^[20].  Eventually, the TCAB only received the notice on 6 July 2015^[21].  

54.  The Adjudicator pointed out that the notice was received on 6 July 2015 according to the postal chop of TCAB.  By then, the notice of appeal was out of time by 4 days.  It transpired that this notice was not signed and there was no reason given for late filing.  The Adjudicator opined that it was null and void.  The TCAB thus return the partially completed notice of appeal to the applicant.  Eventually, the completed notice of appeal reached the TCAB on 14 July 2015.  By then, it was 12 days out of time.^[22]  

55.  The adjudicator stressed that though the applicant signed the notice on 30 June 2015, it did not mean he filed the notice of appeal on that day.  He opined that this would not be a good reason for the late filing.  It was lame excuse to blame the postal service. 

56.  According to the affidavit of Ms Cheng Wai Yan, a detainee in CIC would be allowed to send one letter per day not exceeding 4 pages.  The letter would be mailed out not later than the next working day.  Staff of CIC would process mails in the mornings of Monday to Friday except public holidays.  However, any staff would assist a detainee on Saturdays, Sundays and public holidays on request.  Since the applicant’s notice of appeal exceeded 4 pages, he had to seek assistance from the Welfare Officer.^[23] 

57.  It is not necessary for the present purposes to determine the date when the applicant submitted his request.  Given that 1 July 2015 was a public holiday, there was no postal service anyway.  The notice of appeal would be out of time even if it was mailed by 2 July 2015.  

58.  According to the affidavit of Ms Cheng Wai Yan, Immigration Officer of CIC, the notice of appeal was sent out on 2 July 2015.^[24]

59.  For reasons unknown, the notice of appeal only reached TCAB on 6 July 2015 (4 July 2015 was a Saturday and 5 July 2015 was a Sunday).  The TCAB rightly regarded the applicant out of time.  They returned the partially completed notice of appeal for the applicant to give reasons for late filing and sign.^[25] 

60.  According to the affidavit of Ms Cheng Wai Yan, Immigration Officer of CIC, the partially completed notice of appeal reached the applicant on 9 July 2015.  The completed notice of appeal ultimately reached TCAB on 14 July 2015.  By then, the applicant was 12 days out of time. 

61.  In my view, by 6 July 2015, the applicant’s intention was clear.  It was only because of the partially completed notice of appeal which caused further delay.  It was understandable that the applicant regarded himself within time when he submitted the notice of appeal on or about 30 June 2015.  He therefore did not give reasons for late filing.^[26]  

62.  The Adjudicator must be aware that the applicant was detained in CIC.  Had he made some inquiry, the events set out above would be readily made known to him.  In my view, these events were relevant in considering whether to allow late filing. 

Service of the Decision of the Director — subparagraph (ii) of paragraph 10 of the Adjudicator’s decision. 

63.  The applicant claimed in the notice of appeal that he only received the Director’s Decision on 26 June 2015.  The Adjudicator opined that this was immaterial.  It was a matter between the applicant and Duty Lawyer Service.  In any event, the applicant could have submitted documentary evidence to support this fact. 

64.  According to the “Incident Log” of CIC submitted by the applicant, he had 3 legal visits by the Duty Lawyer Service on 5, 12 and 26 June 2015.  The Director’s Decision was sent to the Duty Lawyer Service on 17 June 2015.  The only date the applicant could have received the Director’s Decision was during the legal visit on 26 June 2015.  Therefore, the applicant had 6 days to consider his position.  

65.  I agree that this fact alone would not justify late filing.  However, it is a significant predisposing factor.  In my view, this is an important aspect which the Adjudicator should have inquired and considered. 

Sufficient time to prepare — subparagraph (iv) of paragraph 10 of the Adjudicator’s decision. 

66.  The Adjudicator pointed out that the applicant had time to write 11 pages setting out his grounds of appeal.  He must have sufficient time to handle the filing of the notice of appeal. 

67.  The Adjudicator did not know how long the applicant needed to write up these 11 pages.  His reasoning is not valid.  In any event, this finding cannot vitiate the special circumstances set out above. 

Conclusion

68.  In my judgment, the Adjudicator should have made further inquiry as to when the applicant received the Director’s decision and the postal service at CIC.  He had not considered relevant matters.  His decision was Wednsebury unreasonable.  Had the circumstances set out above been considered, there should be special circumstances and that it would be unjust not to allow late filing of the notice of appeal.  

69.  I allow the judicial review and make the following orders:

(i) The decision of the TCAB dated 31 December 2015 is quashed. 

(ii) The applicant’s notice of appeal is remitted back to the TCAB for reconsideration in accordance with the findings in the above judgment. 

(iii) There is no order for costs.

(iv) The applicant’s own costs is taxed according to Legal Aid Regulations.