Ya v. Torture Claims Appeal Board

HCAL 1026/2017

[2018] HKCFI 1144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1026 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by counsel for the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The applicant is a 37-year-old national of Algeria who last arrived in Hong Kong on 28 November 2012 with permission to remain as a visitor until 12 December 2012.  However, on 2 December 2012 he was arrested by police for theft and was convicted and sentenced to 4 months’ imprisonment.  Upon discharge he was transferred to Castle Peak Bay Immigration Centre where he was subsequently released on recognizance, but was arrested again on 9 October 2013 for theft, and upon discharge from his imprisonment he lodged a non-refoulement claim on 25 April 2014 with the Department on the basis that if he returned to Algeria he would be harmed or killed by certain Muslim men for converting his religion from Islam to Christianity, that he would be persecuted by the Algerian authorities for proselytizing against the practices of a Muslim, and that he would not be able to receive proper or adequate medical treatments for his psychological problems.

Background of the applicant

2.The applicant was born and raised in Jijel, Algeria to a Muslim family where his parents and siblings still live.  After leaving school he worked as a truck driver and a hawker selling cloths and cigarettes.  In 2011/2012 he started to lose faith in the Islam religion and stopped praying or going to the mosque, and instead showed interest in becoming a Christian.

3.One day in 2012 he was abducted by some Muslim men and was brought to a forest where he was kept in a cave for several weeks and was tortured for abandoning Islam, during which he was also raped and sodomized, until one day when he killed one of the guards and was able to escape to the capital Algiers where he was taken by his friend to a doctor for treatments to his injuries.  When he called his mother in Jijel about his ordeal, he was told that some men had come to her house looking for him, and that he should leave Algeria for his own safety.  He therefore came to Hong Kong in November 2012 where he subsequently lodged his non-refoulement claim, for which he eventually completed his Non-refoulement Claim Form (“NCF”) on 25 May 2016 with legal representation from the Duty Lawyer Service (“DLS”).

The Director’s decision

4.On 2 May 2017 his non-refoulement claim was rejected by the Director of Immigration (“the Director”) on all applicable grounds including torture risk, BOR 2 and BOR 3 and persecution risks.  For the present purpose it would be relevant to note from the Director’s decision that a medical report and a psychological report dated respectively 16 and 31 May 2016 provided by the applicant indicating that he had been receiving medical treatments and assessments at Yuen Mun Mental Health Clinic, Castle Peak Hospital and Kowloon Hospital Psychiatric Unit which were suggestive of a post-traumatic stress disorder (“PTSD”), and that no screening interviews of the applicant by the Immigration Department were conducted allegedly due to his condition, nor was the attempt to elicit answers from him to written questions successful.

Appeal to the Board  

5.After receiving the Director’s decision, the applicant gave instructions to his assigned lawyer to file an appeal to the Torture Claims Appeal Board (“the Board”), and what followed thereafter leading to his leave application for judicial review of the Board’s decisions now before me are based on the following chronology set out in his application.  

6.At the time of the Director’s decision of 2 May 2017, the applicant was held in the Castle Peak Bay Immigration Centre (“CTC”).

7.After he was informed of the Director’s decision, he gave instructions to his assigned lawyer from DLS-CAT to file his appeal to the Torture Claims Appeal Board.

8.Grounds were then drafted and arrangements were made for the Notice of Appeal to be signed and to be filed by the deadline of 16 May 2017, with an appointment arranged for 2 pm on that day.

9.On 15 May 2017 the applicant was taken from CIC to the Tuen Mun Hospital, and neither the DLS nor assigned lawyer were made aware of this until being informed by CIC staff at the time of the scheduled appointment on 16 May 2017 at about 2 pm on that day.  As a result the Notice of Appeal was not signed by the applicant in Section 6 on that day.

10.In order to protect the applicant’s interest, his assigned lawyer filed the unsigned Notice of Appeal with the Board on the same day of 16 May 2017, with an accompanying letter informing the Board of the fact that the applicant had been hospitalized and hence the Notice was not signed.

11.By a letter dated 17 May 2017 to the assigned lawyer care of the DLS-CAT, the Board informed the applicant that as the Notice was not completed in Section 6, it would be “treated as a nullity and will not be processed further” (“First Decision”), but the Notice was retained by the Board.

12.In the same letter the Board referred to provisions of the Immigration Ordinance, Cap 115 including Section 37ZT and in particularly the requirement that in the event that a Notice of Appeal is filed after the expiry of the 14-day statutory time limit, it must include an application for the late filing of the Notice together with documentary evidence relied on in support of the application.

13.The letter further stated that the applicant should file his Notice of Appeal on or before 19 May 2017 without stating under what power that the Board was granting the additional time for the filing of the Notice of Appeal, and that as it was sent by post it was only received by DLS-CAT on 19 May 2017.

14.After the aborted appointment on 16 May 2017, the DLS-CAT made enquiries with the Tuen Mun Hospital and was informed that the applicant had been transferred to the Kowloon Hospital.

15.The DLS-CAT then arranged for an appointment with the assigned lawyer but the chosen Arab–English interpreter was not available until 1 June 2017 when the applicant signed his Notice of Appeal but also gave instructions to obtain his medical reports and records from both the Tuen Mun Hospital and the Kowloon Hospital as evidence in support of his application for extension of time for the late filing of his Notice of Appeal. 

16.On 5 June 2017 the assigned lawyer wrote to the hospitals for the applicant’s medical reports and records, and when told that it would take 5 weeks for the process, the assigned lawyer wrote to the Board on 13 June 2017 confirming that the Notice of Appeal had been signed by the applicant but noted the Board’s procedural guides requiring that the lodgment of application for late filing must be supported by a statement of reasons accompanied by documentary evidence in support, and therefore the applicant would not be able to file his Notice of Appeal until his medical reports had been received, to which there was no response from the Board.

17.On 6 July 2017 the Notice of Appeal was lodged on behalf of the applicant with the application for extension of time for its late filing together with supporting documentary evidence including his medical records from Tuen Mun Hospital pursuant to Section 37ZT of the Ordinance.

18.By a letter of the same date the Board acknowledged receipt of the Notice of Appeal and application and confirmed that the Board would decide as a preliminary decision without a hearing whether the Board would allow the late filing of the Notice of Appeal.     

19.On 8 September 2017 the Board refused the applicant’s application and in its decision (“Second Decision”) made the following findings:

“ 15. The Appellant received the Notice of Decision on 2 May 2017 and he was legally represented by the DLS since the commencement of the proceedings of his non-refoulement claim.  It was noted that the grounds of appeal were quite straight forward and were: i) procedural unfairness; ii) irrational finding of low risk based on past events; iii) incorrect test as to risk from religious activities; and iv) illogical/procedural unfairness in findings of state protection and internal relocation alternative.  It was also noted that an appeal form was provided together with the Director’s Notice of Decision when it was served on the Appellant on 2 May 2017.  The final paragraph in the Director’s Notice of Decision reads “if you are aggrieved by the foregoing decision, you may lodge an appeal/petition.  Your appeal/petition will be determined by the Torture Claim Appeal Board/Adjudicator(s) delegated with the authority to handle such appeals/petitions.  You must file your notice of appeal/petition in the enclosed form accompanied by a copy of this notice within 14 days from the date of this notice.  The address for filing the notice of appeal/petition is that of the Torture Claims Appeal Board/Adjudicator(s) at Rooms 3007–10, 30/F, Immigration Tower, 7 Gloucester Road, Wan Chai, Hong Kong.”  The Director’s Notice of Decision served on the Appellant had expressly stated that the Appellant must file his notice/petition within 14 days of the date of the Notice of Decision, and an appeal form accompanying the Notice of Decision was provided to the Appellant, and the address for filing the appeal/petition was also clearly stated in the Director’s Notice of Decision. The Notice of Decision was sent to the Appellent on 2 May 2017 care of The CAT and Non-refoulement Claims Scheme Office of the DLS.  No explanation was given by the Appellant as to why it was not arranged for him to sign the Notice of Appeal until 16 May 2017 which was only 4 days away from the dead line, why, in view of the deadline on 19 May 2017 that he was not visited at the Tuen Mun Hospital to sign the Notice of Appeal between 15 May 2017 to 17 May 2017, and why he was not visited at the Kowloon Hospital from 17 May 2017 to 19 May 2017, and why the Notice of Appeal was not promptly returned after the Appellant had signed the document on 1 June 2017 and that it was necessary to wait until 6 July 2017 for one or two of the medical reports before returning the signed Notice of Appeal.

16. The Appellant had a known medical history as a suspected case of psychiatric illness with aggressive behavior, self-harm and suicidal tendency.  The CIC was aware of his medical condition, and medical care and treatment had been accorded to the Appellant by the government health services.  Although the Appellant might not be in good health, and he needed medical care and attention, there was no evidence to show that he was unable to submit a Notice of Appeal/Petition, or to give instructions to the DLS.  It was in fact incumbent upon him to give the Notice of Appeal/Petition if he wanted to lodge an appeal and to comply with the 14-day time limit.

17. It was also noted that during the processing of the Appellant’s non-refoulement claim, many extension of time had been granted to the Applicant for him to attend a screening interview or to give written answers to written questions.  Despite numerous time extensions, no screening interview and no written answers were given by the Appellant, and the Director had to decide the Appellant’s claim on the available evidence …”

20.Based on these findings and observations the Board went on to give the following reasons for its refusal of the late filing of the applicant’s Notice of Appeal:

“ 18. Following the principles and methodology in the United Kingdom Begum case, I found, firstly, that a delay of 48 days in filing an appeal against the Notice of Decision is a serious and significant failure to comply with the rules.

19. Secondly, I do not find the Appellant’s reasons for late filing acceptable to explain why he filed his Notice of Appeal 48 days late. I also do not find that the Notice of Appeal was filed at the earliest available opportunity. Considerable delays had been occasioned in the processing of the Appellant’s claim, and also in the filing of his Notice of Appeal. Taking the evidence as a whole, his late filing of the Notice of Appeal would show that he had not promptly dealt with the submitting of the Notice of Appeal and to have it filed within the prescribed time limit. In all the circumstances, I am satisfied that the Appellant would have no good reason for the breach.

20. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

21. There were no other matters known to me or revealed by the factual basis of the Appellant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.”

21.On 7 December 2017 the applicant filed his application for leave to apply for judicial review of both the First Decision and the Second Decision of the Board on the following grounds:

(1) For the First Decision, error of precedent fact/unreasonable rejection of the unsigned Notice of Appeal;

(2) For the Second Decision, unfair/irrational decision and consideration of irrelevant matters/mistake of fact.

22.Whilst the leave application was filed within three months of the Second Decision as required by Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, it was not so with respect of the First Decision and was about four months out of time, and hence the applicant also seeks extension of time for his leave application for judicial review in respect of the First Decision.

Extension of time

23.For the legal principles to extend time, there are two relevant statutory provisions: the said Order 53, rule 4(1) which provides that:

“ An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

24.Whereas section 21K(6) of the High Court Ordinance, Cap 4 provides:

“ Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant—

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

25.These principles have recently been considered and confirmed by the Court of Appeal in AW v Director of Immigration & Anor [2016] 2 HKC 393 when Kwan JA stated at paragraph 27 of the judgment:

“ (1) While in the public law field, it is essential that the courts should scrutinize with care any delay in making an application, the provisions of O 53 r 4(1) and s 21K(6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All ER 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(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. …”

26.From the chronology of events after the Director’s decision and the actions taken by the applicant and his assigned lawyers to try to file his Notice of Appeal with the Board, and whilst a four months’ delay cannot be said to be insignificant, given the applicant’s conditions as shown by the medical evidence before me, I cannot say that he or his assigned lawyer had acted insensibly or unreasonably in the circumstances, and whilst his attempt to exhaust other remedies does not automatically enlarge the time for seeking judicial review, I agree with Mr Barnes’s submission for the applicant that it may constitute a valid reason why time should be extended, as it was said in ET Investment Ltd (t/a Oasis Nursing Home) v Director of Health [2016] 1 HKLRD 1389.

27.Mr Barnes submits that the available remedy in this case was the provision for a late filing of the Notice of Appeal under section 37ZT of the Immigration Ordinance, and if the applicant had proceeded immediately to judicial review of the First Decision without first exercising this alternative option, the court would have likely refused to entertain the application, as the statutory remedy under section 37ZT constituted an adequate remedy in that it would have rendered unnecessary any challenge to the Board’s rejection of the Notice: R v Epping and Harlow General Commissioners, Ex parte Goldstraw [1983] 3 All ER 257.

28.I agree with Mr Barnes that the applicant did genuinely attempt to exhaust his available remedy under section 37ZT of the Ordinance before resorting to his present application, and while he could have filed his leave application first and then applied to stay it pending his application for late filing of his Notice of Appeal, I cannot say that he had in the circumstances acted insensibly or unreasonably, and that by extending time to his challenge against the First Decision I do not see any prejudice in reality which may be caused to public administration given the fact that his challenge against the Second Decision was within time and will at any rate proceed accordingly.  For these reasons and in the exercise of my discretion I allow the applicant’s application for extension of time for his leave application for judicial review of the Board’s First Decision.

First Decision

29.The First Decision is challenged on the ground that the Board wrongly rejected the Notice of Appeal which was an error of precedent fact, or in the alternative that the Board should have treated the lack of a signature as an irregularity capable of remedied by later signing by the applicant rather than a nullity.

30.Section 37ZS of the Immigration Ordinance provides for the filing of the Notice of Appeal against a decision of the Director or his officer rejecting a torture claim as follows:

“ (1) A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of appeal within 14 days after notice of the decision is given to the person unless late filing of the notice is allowed by the Board under section 37ZT(3).

(2) A notice of appeal must be—

(a) in a form specified by the Chairperson of the Appeal Board; and

(b) accompanied by a copy of the notice of the decision being appealed against.”

31.Mr Barnes submits that the applicant was represented through the DLS at all times and the specified form, which is in Appendix A to the Principles, Procedures and Practice Directions of the Torture Claims Appeal Board, 5^th Edition, 12 September 2016 (“PPP”), and is the same for petitions for non-refoulement claims under The Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, 4^th Edition, 12 September 2016 (“Petition Guide”), and which was completed naming the assigned lawyer as the applicant’s legal representative and drafted upon the instructions of the applicant and lodged with the Board by the DLS, and that the Board’s stated reason for rejecting the Notice was that it had not been signed by the applicant in Section 6 of his Notice.

32.Mr Barnes submits that nothing in the Ordinance, the PPP or the Petition Guide empowered the Board to reject the Notice of Appeal or to treat it as a nullity simply because it had not been signed by the applicant as it was filed in compliance with Section 37ZS within the 14 day time limit, and that the Board was then required to serve a copy of the notice on the Director pursuant to section 8(1) of Schedule 1A to the Ordinance and to take all steps to hear and determine the Appeal/Petition, hence the rejection of the Notice amounted to a refusal by the Board to exercise its statutory duty to hear and determine the Appeal and corresponding delegated administrative power to receive and determine the merits of the petition, and that the Board’s decision to decline jurisdiction was wrong and certiorari should issue with an order for mandamus to direct the Board to hear and determine the Appeal.

33.Mr Barnes further submits that the non-completion of Section 6 of the Notice of Appeal constituted at most an irregularity which could be easily cured or remedied by the applicant at the latest at the hearing of the appeal and not rendering it fundamentally flawed or having the effect of nullifying the proceedings.

34.I agree that it is reasonably arguable that the non-completion of Section 6 of the Notice of Appeal did not render it a nullity and that high standard of fairness requires that it should have been be allowed to be filed first with the section to be completed later in the circumstances of the applicant’s situation.

Second Decision 

35.As for the Second Decision, Mr Barnes submits that the Board was required to give reasons for its decision to refuse late filing of the Notice of Appeal, and that the reasons must be sufficient to enable an applicant to understand why it was considered by the Board that the test of “special circumstances” is not met, as it was held by Au J in B v Torture Claims Appeal Board [2015] 1 HKLRD 681.

36.In that case where the applicants applied to the Board for extension of time to file their notices of appeal on the ground that the duty lawyer assigned to represent them was on maternity leave, the Board refused their application in that no special circumstances had been shown, the applicants obtained leave for judicial review of the Board’s decision on the ground that the Board had failed to give a reasoned decision under section 23(3) of Schedule 1A to the Immigration Ordinance, as Au J explained firstly why reasons should be given:

“ 34. That takes me to next consider whether, in the circumstances of this case, the Board should give reasons for the Decision as a matter of fairness.

35. In relation to this, I accept Mr Dykes’s submissions that fairness requires the Board to give reasons for the Decision in the present case because:

(1) The Decision has the effect of finally disposing of the applicants’ torture claims and making them liable to be removed. This entails real and significant implications for the applicants’ substantive right not to be subjected to torture and their right to non-refoulement protection. In other words, the Decision has a significant effect on the applicants’ torture claims.

(2) Secondly, the lack of a right to appeal against the Decision (coupled with the above substantive effect of the Decision) is also a factor pointing towards the need for reasons to be given. Cf: Stefan v General Medical Council (No 1) [1999] 1 WLR 1293, 1298H–1300C per Lord Clyde.

36. I therefore accept that the Board has a common law duty to give reasons in relation to this particular Decision.”

37.His Lordship then went on to find that no reasons were given in the Board’s decision that it should be quashed, as he explained:

“ 37. As shown above, the letter containing the Decision only stated that the Board did not find the reasons given for the application for extension of time amounted to special circumstances. I accept Mr Dykes’s submissions there are no reasons to explain why it was so. It cannot be said that the reasons must be so obvious as to why the Duty Lawyer’s maternity leave did not amount to special circumstances in the present case, in particular when it is generally the position that the assignment under DLS is personal to the lawyer assigned but not the firm generally, and that that Duty Lawyer had all along been involved in the applicants’ CAT claims.

38. I therefore conclude that the Decision should be quashed for lack of reasons.  I would remit the Decision back to the Board for reconsideration.”  

38.Mr Barnes submits that it is clear from the reasons given the Board did not consider (1) the substantive merits of the case or (2) the consequences of the decision to the applicant, as the adjudicator as noted above only commented that the grounds of appeal were “quite straightforward”, and that the only other conceivable reference to the substantive merits of the appeal is at paragraph 20 where, as noted above, the adjudicator states that “I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application”, of which Mr Barnes submits as not sufficient as it is materially indistinguishable from the inadequate reasons given by the adjudicator in B v Torture Claims Appeal Board, supra, which formed the basis for the decision in that case to be quashed for lack of reasons.

39.I note in the same paragraph the Adjudicator stated that he was following the 3^rd stage referred to in Begum in his evaluation of all the circumstances of the applicant’s case before arriving at his conclusion, which was stated by Lord Justice McCombe in Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 amongst the three stages in which a judge must approach an application for relief from sanction such as one for extension of time as follows[1]:

“ 14. …

‘ 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. …’”     

40.Given what the adjudicator for the Board had stated in its decision as noted above, I agree that the grounds advanced by the applicant that the Board has failed to give any or adequate reasons for refusing his application for late filing of his Notice of Appeal are reasonably arguable in his intended application for judicial review.

41.In the premises and accordingly I grant leave to the applicant to apply for judicial review of both decisions of the Board.

Dated the 25^th day of May 2018.

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