Mg v. Torture Claims Appeal Board

HCAL 150/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTION AND ADMINISTRATIVE LAW LIST

NO. 150 OF 2014

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JUDGMENT
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1.This is an application for judicial review.

2.On 25 March 2014, the Torture Claims Appeal Board (“the Board”) made a decision (“the Decision”) refusing the Applicant’s late filing of a notice of appeal (“the Notice of Appeal”) made under s 37ZT of the Immigration Ordinance (Cap 115) (“the Ordinance”).  In the application filed on 7 November 2014, the Applicant seeks for an order of certiorari to quash the Decision on the ground that the Board had failed to provide reasons for the Decision.

3.The time for applying for leave for judicial review under RHC O.53 r.4 expired on 25 June 2014.  The Applicant therefore also seeks an extension of time to make the leave application under s.21K(6) of the High Court Ordinance (Cap 4) and RHC O.53 r.4(1).

Background

4.The Applicant was born in 1971 in Pakistan.  He fled to Hong Kong in 2001.  In the same year, he lodged an asylum application with the United Nations High Commission for Refugees (“UNHCR”) which was rejected in 2005.

5.On 15 September 2005, the Applicant lodged a claim for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) under the scheme established by Part VIIC of the Ordinance.  The Director of Immigration (“the Director”) rejected the claim on 20 December 2013 (“the Director’s Decision”).

6.On 30 December 2013, before the expiry of the 14-days-period for filing the Notice of Appeal, Ms Amy Tang, a senior court liaison officer with the Duty Lawyers Service, wrote to the Board on behalf of the Applicant to request for an extension of time to file the Notice of Appeal against the Director’s Decision.  In the letter, Ms Tang stated that the “Duty Lawyer assigned to represent [the Applicant] is on maternity leave which will continue until the end of February 2014”.  An extension of time until March 2014 was sought.

7.On 31 December 2013, the Board replied to the said letter reinstating the standard procedures for filing a notice of appeal.

8.On 13 March 2014, the Applicant lodged the Notice of Appeal against the Director’s Decision that included the application for late filing.

9.On 25 March 2014, the Board refused the application for late filing on the ground that “no special circumstances have been shown to the Board for the late filing of [the Notice of Appeal]”.

10.The Applicant says that when making the Decision, the Board had failed to give reasons.  The statement that “no special circumstances have been shown to the Board”, which is a simple recital of the s. 37ZT(3) requirement to show “special circumstances”, does not amount to providing adequate reasons.

11.The same issue was the subject of a decision in B v Torture Claims Appeal Board [2015] 1 HKLRD 681.  In that case, the applicant made a similar application for late filing of the notice of appeal on the ground that the same assigned duty lawyer was on maternity leave.  The application was refused without the provision of adequate reasons.  In the judgment handed down on 6 January 2015, Au J accepted that fairness required the Board to give reasons for its decision.  The judge gave 2 reasons for his conclusion that the Board had a common law duty to give reasons.  First, the decision “has a significant effect on the applicants’ torture claims”. Second, there was a “lack of a right to appeal against the [decision]”. Au J also found that “there are no reasons to explain” why maternity leave of the assigned duty lawyer did not amount to special circumstances, and so he quashed the decision and remitted the application back to the Board for reconsideration.

12.In the present case, the Applicant filed the application for leave to apply for judicial review against the Decision on 7 November 2014.  The application was later referred to me for consideration and I granted leave on 6 March 2015.

13.After the service of the papers of the judicial review proceedings on the Board, it sent a document named “Note for File”, dated 25 March 2014, to the court on 19 May 2015 with an accompanying letter from a Ms Carmen Ng.  In the said letter, Ms Ng stated the following:

“Please be informed that [the Board] intends to take a neutral stance in the above proceedings and would wish to be excused from attending any hearing of the application. The Board will abide by any decision and order of the Court in respect of the above proceedings.

However, we notice the recent judgment of Thomas Au J in B v Torture Claims Appeal Board [2015] 1 HKLRD 681 in which he held that the Board had a common law duty to give reasons in relation to the decision of the Board therein in refusing the Applicants’ application for late filing of their Notices of Appeal made under section 37ZT of [the Ordinance].  In the light of the judgment, we enclose herewith with a copy of the ‘Note for File’ made by Ms Betty Kwan, Chairperson of the Board dated 25 March 2014 for your reference.  You may wish to note that the ‘Note for File’ was made contemporaneously with [the Decision] of the Board dated 25 March 2014, which contained a full account of the reasons for [the Decision] to refuse the late filing of the Notice of Appeal.  The Secretariat of the Board was directed by Ms Kwan to put on file the said ‘Note for File’. We trust that by disclosing the said ‘Note for File’, the Board has already cured any possible non-compliance with the duty to give reasons in the first instance.”

14.The Note for File, dated 25 March 2014, was signed by the Chairperson of the Board, Ms Betty Kwan, who made the Decision. The Note for File listed out the chronology of the present case and recited s 37ZT of the Ordinance.  Ms Kwan also set out in full the reasons for refusing the application, including, inter alia:

(i) the Duty Lawyers Service and the assigned duty lawyer should have been aware of the procedures for making the application for extension of time to file the Notice of Appeal;

(ii) the application for leave to file the appeal out of time should not be treated as a mere formality;

(iii) the Applicant had failed to provide the statement of reasons and the supporting documents for consideration by the Board as required by the provisions in s 37ZT;

(iv) a lot of crucial information was missing in the application, eg, whether alternative duty lawyer was available to the Applicant; and

(v) the Applicant had deprived the Board of any or any sufficient information, materials, documents or evidence to enable the Board to make a finding that, by reason of special circumstances, it would be unjust not to allow the late filing of the Notice of Appeal.

15.In a letter dated 15 July 2015, the Board wrote to the solicitors for the Applicant, clarifying that the Note for File was “intended as background information not evidence”.

16.The Board has taken a neutral stance in this application and has been excused from attending the hearing.  The Director is joined as an interested party.  However, he through the Department of Justice applied on 21 August 2015 to be excused from attending as he would also take a neutral stance in the application.  The court also granted leave to excuse the Director’s attendance.

Merits of the judicial review application

17.Mr Dykes, SC, counsel for the Applicant, does not seek to challenge the merits of the reasons listed out in the Note for File. In fact, detailed reasons for refusing the extension of time application have been given in the Note for File, and it is not open to the Applicant to argue that the reasons contained therein are inadequate.  Further, as provided for in s 23 of Schedule 1A of the Ordinance, there is no right to appeal against the Decision.

18.As agreed by Mr Dykes, the issue in this judicial review is a narrow one.  It is clear that inadequate reasons had been given in the letter of the Board to the Applicant dated 25 March 2014.  In order to establish that the Note for File is a contemporaneous record of the reasons underlying the Decision, and that those reasons are not post justification, Mr Dykes submits that the Board should have made an appearance in this application and filed an affirmation to explain how the Note for File came to be made and why it “cured” the defect.  In particular, the Applicant’s solicitors had, in their letter to the Department of Justice on 4 June 2015 and copied to the Board, indicated that there is no proper basis for the court to consider the contents of the Note for File as it is not evidence before the court.  Mr Dykes therefore complains that, despite the request of the Applicant, the Board refused to verify the truthfulness of the contents of the Note for File on oath.

19.As the Note for File was signed by the person who made the Decision and bearing the same date of the Decision, even in the absence of a supporting affirmation, there is no reason for the court to doubt that it is not a contemporaneous record of the reasons underlying the Decision.  In fact, Mr Dykes, very fairly, does not seek to challenge the genuineness of such document.  Neither is he suggesting any impropriety on the part of the Board in the preparation of the Note for File.

20.I agree that the reasons given earlier in the letter dated 25 March 2014 are inadequate.  However, the most important issue here is whether the reasons stated in the Note for File were the real reasons of the Board at the time of the making of the Decision.  If those were the real reasons, the Board, by supplying such reasons at a subsequent time, was not in breach of the common law duty in failing to provide reasons for its Decision. There is no procedural unfairness to the Applicant, and there is no ground for the court to disturb the Decision of the Board.

21.One of the recent examples in which the court exercised such discretion not to quash a decision is Hong Kong Television Network Limited v Chief Executive in Council [2015] 2 HKLRD 1035.  In that case, although the Chief Executive in Council did not supply the reasons for his decision in refusing to grant the domestic free television licence to the applicant, the Chief Executive in Council supplied the minutes of the Executive Council in the judicial review proceedings showing that how the Chief Executive in Council had come to make such decision.  As there was no reason for the court not to accept the minutes as a contemporaneous record containing the reasons underlying the decision, Au J refused to exercise the discretion in quashing the decision of the Chief Executive in Council on the ground of failing to provide reasons (see: paras 97 to 102 of the judgment).  Nevertheless, the judge quashed the decision on some other grounds.

22.Whilst I understand the Board’s reluctance in entering into appearance in this case, I consider it a good practice on the part of the Board to supply full reasons to the applicant at the time of the notification of its decision either accepting or rejecting the request for extension of time, or at least to notify the applicant that the reasons for the decision would be supplied at a future date.  In any event, it seems that the Board would have to prepare a document like the Note for File for every case. Such practice would dispel any suggestion of post justification of its decisions.  I hope that the Board has already adopted such practice in light of the decision in B v Torture Claims Appeal Board, supra.

23.Based on my aforesaid analysis, it is unnecessary for me to make a determination as to whether the court should refuse the Applicant’s application for extension of time for leave to apply for judicial review.  In any event, the Board and the Director have not challenged the court’s decision in granting leave, and so this is not an issue which requires the attention of the court.

24.For the above reasons, I dismiss the judicial review application to challenge the Decision.

25.As the Board and the Director have not entered appearance in this case, I make a costs order nisi that there be no order as to costs of this application and the Applicant’s own costs to be taxed in accordance with legal aid regulations, which shall be made absolute 14 days after the date of the handing down of this Judgment.

Mr Philip Dykes, SC, instructed by Daly & Associates, for the Applicant

The Respondent and the Interested Party, absent, attendance excused