Md Yousuf Miah v. Torture Claims Appeal Board

HCAL 105/2016

[2018] HKCFI 1048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 105 OF 2016

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Before: Hon Wilson Chan J in Chambers (Open to Public)

Date of Hearing: 28 March 2018

Date of Judgment: 17 May 2018

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J U D G M E N T

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Introduction 

1.The present Summons was taken out by the Director of Immigration, the interested party, to set aside the leave granted to the applicant to apply for judicial review on grounds of, inter alia, (i) undue delay; and/or (ii) that there was material non-disclosure by the applicant to this court when applying for leave.

Background

2.The applicant is from Bangladesh.  On 29 April 2014, the applicant arrived in Hong Kong and lodged his non-refoulement claim under the unified screening mechanism (“USM”).

3.By a letter dated 2 May 2014, the Removal Assessment Section (“RAS”) of the Immigration Department served on the applicant a “Notice to Persons Making a Non-refoulement Claim” (the “Notice”).  

4.Paragraph 51 of the Notice stated that if the applicant is aggrieved by the Immigration Department’s decision rejecting his claim, he may appeal and/or petition by filing a notice of appeal/petition with the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Appeal Board”) within 14 days after the Notice of Decision is given to him, and that late filing of the notice of appeal/petition may be allowed only if the Appeal Board is satisfied that by reason of special circumstances it would be unjust not to allow such late filing.

5.The Notice was explained to the applicant through an interpreter. The applicant declared that he fully understood the contents of the Notice.

6.By a letter from the Duty Lawyer Services (“DLS”), which represented the applicant, to the RAS dated 29 May 2014, the applicant submitted his Non-refoulement Claim Form (“NCF”).

7.On 17 June 2014, a screening interview with the applicant was conducted. 

8.By a Notice of Decision dated 7 July 2014, the Immigration Department rejected the applicant’s non-refoulement claim.  The Immigration Department also sent to the applicant a letter dated 7 July 2014 enclosing a blank Notice of Appeal/Petition to the Appeal Board, and reminding the applicant that he must file his Notice of Appeal/Petition within 14 days from the date of the Notice of Decision (ie by 21 July 2014).  

9.According to section 5 of the Notice of Appeal/Petition, if an applicant files his appeal/petition out of time, he must include a statement of the reasons for late filing and must also submit relevant documentary evidencein support of such reasons.  

10.On 11 August 2014, the applicant appealed to the Appeal Board.  The applicant’s appeal was therefore made out of time. 

11.By a letter dated 10 September 2014 (“the September 2014 Letter”), the Appeal Board decided to refuse the applicant’s application for late filing of the Notice of Appeal/Petition (“the Appeal Board’s Decision”).

12.The applicant claimed that he did not receive the September 2014 Letter when it was first sent to him.  By another letter of the Appeal Board dated 3 November 2014, the applicant was sent again the September 2014 Letter.  The applicant acknowledged receipt of the Appeal Board’s letter dated 3 November 2014 on 7 November 2014.

13.The applicant was detained at the Castle Peak Bay Immigration Centre (“CIC”) during the following periods: (i) 29 April 2014 to 9 September 2014; and (ii) 23 September 2014 to 16 November 2014.

Applicant’s application for leave to apply for Judicial Review

14.On 15 December 2014, the Legal Aid Department (“LAD”) granted legal aid to the applicant.

15.On 27 May 2016, the applicant applied to this court for leave to apply for judicial review in his Form 86.  

16.The applicant has filed two affirmations in support of his application for leave.

17.In his first affirmation, the applicant told this court that the reason for late application to apply for an appeal to the Appeal Board and for leave to apply for judicial review was because he was unable to arrange for documents (ie charge sheet of a murder case against him) (“the Documents”) from Bangladesh beforehand. 

18.In his second affirmation, the applicant repeated this same reason to this court. 

19.On 27 July 2017, leave was granted to the applicant to apply for judicial review but only limited to two grounds as set out in paragraph 1(2) and 1(3) of the Form 86, namely (i) that the Appeal Board had failed to consider the applicant’s difficulty in contacting his friends and family in obtaining documents from Bangladesh; and (ii) that the Appeal Board had failed to give reasons in the September 2014 Letter.

Law on setting aside leave

20.Applications to set aside leave may be made on a number of grounds, including undue delay, want of reviewability, the existence of an alternative remedy, want of arguability and material non-disclosure [see: To Kin Wah v Tuen Mun District Officer (No 2) [2003] 4 HKC 213; Tiwari Amandeep v Torture Claims Appeal Board, HCAL 226/2015 (Judgment of Yau J dated 21 April 2017)].

21.The leading authority on the question of delay in applications for leave to apply for judicial review is AW v Director of Immigration [2016] 2 HKC 393.  In that case, the Court of Appeal said this at paragraph 27(3):  

“What may constitute a good reason for extending time cannot be defined. In most cases, this would be a ‘multi-faceted question’ the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’ (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.”

[Emphasis supplied]

22.In deciding whether there was good reason for the delay, in the case of legally aided applicants who alleged that the delay was caused by the lengthy processing of applying for legal aid, it might be necessary for the Legal Aid Department to file an affidavit from the relevant case officer setting out a chronology and an explanation of the time taken in processing the application and the reason for any delay or inaction that had taken place.  The onus is on the applicant to show good reason for extending time and a bare assertion from the applicant is not sufficient.  The court expects the applicants and their solicitors to proceed with diligence in pursuing leave applications.  [see: X v Torture Claims Appeal Board and Director of Immigration, HCAL 143/2013 (Judgment of Zervos J dated 4 September 2014), at paragraphs 10 to 13]

23.In summary, whether the court will set aside ex parte leave for undue delay is a multi-faceted question.  The court will consider a number of factors, including length of the delay; explanation for the delay; merits of the substantive application; prejudice to both the applicant and the respondent and to public administration; whether there is any question of general public importance; and whether there is material non-disclosure. 

Undue Delay

24.The applicant claimed that he was only informed of the Appeal Board’s Decision on 7 November 2014.  Even if this was the case, he still should have filed for leave for judicial review within the three-month period as provided for under Order 53, rule 4(1) of the Rules of the High Court.  The applicant’s application for leave to apply for judicial review was taken out on 27 May 2016, which was some 20 months after the date of the Appeal Board’s Decision, or some 18 months from the date he acknowledged receipt of the Appeal Board’s Decision.  This is no doubt “undue delay”. 

25.In his second affirmation, the applicant asserted that his reasons for the delay in applying for leave for judicial review was because since legal aid was granted on 15 December 2014, he had not been able (until 7 November 2015) to arrange for the Documents to be sent from Bangladesh to Hong Kong.  He also deposed that between November 2015 and January 2016, his legal representatives had written to various departments requesting for all the copies of documents relating to his non-refoulement claim.  He also claimed that between February 2016 and April 2016, he had various conferences with his legal representatives.

26.I agree that these are all bare assertions made by the applicant.  As early as when the applicant filed his NCF dated 27 May 2014 with the Immigration Department, he already informed the Immigration Department that he could submit the Documents around 2 weeks after his release from the CIC.  He explained that the Documents were at his home in Bangladesh, and he needed time to contact his family members and friends in Bangladesh to obtain the Documents.  Further, during the screening interview on 17 June 2014, the applicant said that after he was released from the CIC, he would be able to submit the Documents within 15 days. Yet, at paragraph 53 of his Form 86, the applicant stated that he only received the Documents on 7 November 2015 by “email”.

27.The applicant was released from the CIC on 9 September 2014; subsequently he was re-detained on 23 September 2014, but released again on 16 November 2014.  The onus is on the applicant to show to this court why it had to take him a year (instead of 2 weeks or 15 days as previously stated to the Immigration Department) to obtain the Documents, which seems that he could have easily obtained via e-mail.  The applicant has failed to give this court any explanation. 

28.Further, the Legal Aid Department and the assigned solicitors of the applicant have not filed any affidavit evidence explaining the undue delay in seeking leave to apply for judicial review.  With legal aid having already been granted on 15 December 2014, it is unreasonable that the assigned solicitors only started writing to various departments seeking for all the copies of documents relating to the applicant’s non-refoulement claim between November 2015 and January 2016, which could have been done earlier.  In any event, as soon as legal aid was granted on 15 December 2014, the applicant could have immediately taken out an application for leave to apply for judicial review.  There was no need for the applicant to wait for the Documents before filing his application.  The applicant, the Legal Aid Department and the assigned solicitors have not provided any credibly valid explanation to justify the undue delay.  The applicant has unjustifiably slept on his rights.

Material Non-disclosure

29.All along in the applicant’s two affirmations, he had never mentioned the content of or exhibited his Notice of Appeal/Petition to the Appeal Board.  In particular, the applicant had never mentioned to this court what he had written in section 5 of his Notice of Appeal/Petition as his reasons or explanation to the Appeal Board for his late filing of his appeal/petition.  All along in his Form 86 and in his affirmations filed in these proceedings, the applicant has given the impression that the reason for his late filing of his appeal/petition with the Appeal Board was because he had difficulty to arrange for the Documents to be sent to Hong Kong, and he had told the Appeal Board as such, but the Appeal Board nevertheless failed to take this into consideration.  Up to now, the applicant has still not exhibited his Notice of Appeal/Petition in these proceedings.  It was not until the Appeal Board sent to this court the “Note for File” dated 10 September 2014 that it became known that the reason in fact given by the applicant for his late filing of his appeal/petition was: –

“I do not know English therefore I could not write. A friend of mine came and he show me then I wrote, so I am late in filling [sic] my appeal. I made a mistake.”

30.It is thus plain that the reason provided to the Appeal Board is entirely different from what the applicant has informed this court.  If not wilfully misleading, I agree that this at the very least amounts to material non-disclosure to this court.

Conclusion

31.For the reasons set out above, the leave granted to the applicant on 27 July 2017 to apply for judicial review is set aside.

32.I make an order that the costs of the application be paid by the applicant to the interested party, such costs are to be taxed if not agreed.

33.The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

The applicant appeared in person

Mr Stanley Ng, instructed by the Department of Justice, for the interested party