RE S M NAHIDI

HCAL 557/2021

[2021] HKCFI 1794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 557 OF 2021

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DECISION

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Introduction

1.  This is the applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 26 March 2021 (the “Decision”). 

2.  The applicant is a Bangladeshi national.  He entered Hong Kong on 21 July 2006 as a visitor and was permitted to remain until 4 August 2006.  He over-stayed thereafter.  He was arrested by the police on 19 April 2007 and referred to the Immigration Department on 20 April 2007. He was released on his own recognizance on 10 May 2007. 

3.  On 16 April 2008, he was arrested for taking up unapproved employment.  He was convicted and sentence to three months’ imprisonment.  After he was discharged from prison on 5 July 2008, he raised a torture claim.  He claimed that if returned to Bangladesh, he will be harmed or killed by Sharif and his group for refusing to quit the Awami League to join the Bangladesh National Party; and by Kaji Sumon for refusing to pay extortion money.

4.  In due course, his non-refoulement claims were assessed on all three applicable grounds then available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3] grounds.  By a Notice of Decision dated 24 February 2015, the Director of Immigration (the “Director”) rejected his claims (the “2015 Notice”).  In the 2015 Notice, he was advised that if he is aggrieved by the decision, he may appeal to the Board within 14 days of the notice.  A copy of the notice of appeal and address of the Board was attached to the 2015 Notice.  The applicant did not appeal.  The decision of the Director in the 2015 Notice became final.

5.  On 31 October 2016, the Immigration Department wrote to the applicant inviting him to provide further information in support of his non-refoulement claim relating to BOR 2 Risk[4].  He did not respond.  By a Notice of Further Decision dated 18 November 2016, the Director rejected his claim for protection under BOR 2 Risk ground (the “2016 Notice”).  The 2016 Notice also contained a similar advice that he may appeal to the Board within 14 days of the notice.

6.  On 1 March 2021, the applicant lodged his notice of appeal to the Board.  In favour of the applicant, the Board assumed the appeal was related to both the 2015 Notice and the 2016 Notice.  By its Decision dated 26 March 2021, the Board refused to allow the applicant’s late filing for the appeal.  The applicant now seeks to apply for leave to apply for judicial review of that Decision.

Grounds for application for judicial review

7.  The applicant did not state his grounds for application for judicial review in his notice of application for leave to apply for judicial review (Form 86).  In his supporting affirmation, he advanced the following observations as grounds of judicial review:

(1)  He is a genuine non-refoulement claimant faced with dangerous problems, harassment and torture in his home country;

(2)  The Director was wrong in his decisions in the 2015 Notice and 2016 Notice; to understand his danger, the immigration officer should have visited his home country;

(3)  His problems are getting more and more life-threatening day after day; if he did not run away he would have been killed; and

(4)  For the above reasons, he should be granted a judicial review.

8.  In my view, these so-called grounds are statement of facts and not grounds for judicial review.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claims, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board’s Decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].  In considering the applicant’s application for leave, the court will focus on possible complaints of error of law, procedural unfairness, unreasonableness, irrationality and breach of the high standard of care owed to an unrepresented claimant in the context of the Board’s Decision in refusing his application for late filing of notice of appeal against the Director’s 2015 Decision and 2016 Decision.

The law – late filing of notice of appeal

9.  The appellate regime relating to non-refoulement claims under the Immigration Ordinance permits a claimant to appeal to the Board against the decision of the Director refusing his claim within 14 days of the decision of the Director: see section 37ZS.  The section sets out the procedures for dealing with a notice of appeal filed after the expiry of the 14-day period.  This section provides as follows:

“37ZT. Late filing of notice of appeal

(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 decide, 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.

(3) 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 and must, by written notice, inform the person filing the notice of the Board’s decision.

(4)  If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.”

10.  It is obligatory for the claimant to furnish a statement of reasons for the late filing and to provide documentary evidence wherever available.  It is mandatory for the Board to decide as a preliminary decision without a hearing whether to allow the late filing.  The Board shall only make its decision on the basis of the statement of reasons and accompanying documents furnished by the claimant and the relevant matters of fact within the Board’s own knowledge.  The test is whether there are special circumstances which would make it unjust not to allow the late filing of the notice of appeal.  To answer that question, the court adopts the three stage approach laid down in The Secretary of State for the Home Department v Begum[6]:

“As noted by Richards LJ in the latter case a judge must approach an application for relief from sanction in three stages as follows:

i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.

ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.

iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (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.  As listed in para. [35] of the judgment in Denton:…’”

The Board has to consider (i) seriousness of the breach; (ii) reasons for the breach; and (iii) an evaluation whether in all the circumstances of the case known to the Board that it would be unjust not to grant the extension of time.  It is certainly unjust not to grant extension of time to enable a meritorious appeal to proceed.  These procedures are also set out in the Petition Guide.

11.  The operation of section 37ZT came before the Court of Appeal in Re Qasim Ali[7].  The Court of Appeal adopted the test in Begum and held that a delay of eight days cannot on any view be regarded as serious or significant and the Board’s decision to that effect was Wednesbury unreasonable.  It also held that even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.  This approach is in line with Denton which was quoted in Begum, that is, if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail.  It is necessary in every case to move to the third stage.

12.  The above dicta are sufficient to dispose of this application. Even if there was a significant breach without good reason, this does not mean the late filing must be rejected.  It is necessary in every case to move to the third stage.  The delay of 21 days Re Qasim Ali is not very serious, but not insubstantial compared with the 14-day time limit for appeal.  Even if it were serious, the decision maker should move to the third stage.  The seriousness of the breach and the presence or absence of a valid explanation may have an impact in deciding whether it is unjust not to allow the late filing. If the breach is not serious and there is a valid explanation, it would take very little to persuade the Board that it would be unjust not to allow the late filing. On the other hand, the more serious the breach, the higher is the threshold required to persuade the Board.

Decision of the Board

13.  The Board found that the 2015 Notice was sent to the applicant’s last known address in Chung Sing San Tsuen and the applicant is deemed to have received it on 26 February 2015.  The applicant should have filed the notice of appeal to the Board on or before 12 March 2015.  It was six years late.   In respect of the 2016 Notice, the Board found that it was mailed to the applicant to his last known address in Ma Tin Pok and he is deemed to have received it on 21 November 2016.  He should have filed his notice of appeal on or before 5 December 2016.  It was almost four and a half years late.  The breaches were very serious.

14.  Under the instruction in the notice of appeal, it was stated that if the notice is filed after expiry of the 14-day period, the applicant must apply for late filing and include a statement of reason in Section 5 of the notice which must be accompanied and supported by documentary evidence.  The reason given by the applicant in Section 5 of the notice of appeal was:

“The reason for late filing of appeal against the decision is due to lack of connection of myself and the immigration department. I didn’t receive any notice of letters from the immigration therefore I was confused about the whole matter, and I didn’t know what furthermore to do. Therefore I humbly request you to accept my appeal and give me a chance to save my life. Thank you.”

15.  The Board then considered the reasons for the late filing.  The applicant gave no documentary evidence to support the late filing.  Despite having given allowance for the fact that the applicant is not a native speaker of English, the Board did not find the reasons given by him persuasive. The applicant gave no explanation why he made no proactive attempt to contact the Immigration Department and how he became aware of the two Notices.  The Board found that he has become disengaged from actively participating in his application for no-refoulement protection.  It did not accept the applicant’s explanation for the late filing of the notice of appeal.

16.  Then, the Board carried out an evaluation whether in all the circumstances of the case known to the Board that it would be unjust not to grant the extension of time.  It considered the grounds of the appeal stated in the notice of appeal; the past harm allegedly experienced by the applicant, the changes in political environment favouring the applicant with the Awami League becoming the ruling party; and the long lapse of time since the incidents of 2003 to 2006 when the risks allegedly arose.   The Board was not satisfied that the merits of the applicant’s non-refoulement claim are sufficient to weigh in favour of the exercise of its discretion to allow the late filing.

17.  Hence, the Board was not satisfied by reason of special circumstances that it would be unjust not to allow the late filing and refused the late application.

Disposition

18.  Here, the delay of almost four and a half years or six years is inordinate and very serious.  The reason given by the applicant for the late filing was a bare statement not supported by documentary evidence.  The Board was not satisfied that there was any valid explanation for the delay or special circumstances that it would be unjust not to allow the late filing.  The Board followed the procedure set out in section 37ZT and the Petition Guide to the letter.  Even though the Board did not mention Begum, it effectively adopted the three-stage approach in that case.  The Board committed no error of law.  The conclusion reached by the Board is a finding of fact which is exclusively within the province of the Board as the tribunal of fact to make.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  There was no procedural unfairness.  The Board adhered to a very high standard of fairness.  The Decision was utterly without fault.  The applicant’s intended judicial review has no realistic prospect of success.  Accordingly, leave to apply for judicial review was refused.