Amjad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL754/2017

[2018] HKCFI 1667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 754 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 the Applicant in open court;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Pakistani national who was refused permission to land in Hong Kong on 11 November 2015 but lodged a non-refoulement protection claim on the same day.  The Director of Immigration (“the Director”) rejected his claim on 26 January 2016.  This decision was sent to the applicant care of the duty lawyer scheme who was representing the applicant.  The Torture Claims Appeal Board (“TCAB”) did not receive any notice of petition/appeal within 14 days from the applicant.

2.However, the applicant did file a notice of appeal to the TCAB on 6 January 2017 but by then it was over 10 months late.  The reason given by him was that he had posted the notice of appeal by registered post but had lost the registered post receipt.  He had since been told by the TCAB they never received his notice of appeal so he requested an extension of time.  The adjudicator considered the Immigration Ordinance, reason given by the applicant and the lack of any documentary evidence to support that reason.  On 25 April 2017 the adjudicator of the TCAB refused the applicant’s application for late filing of his notice of appeal because he did not find the applicant’s reason for late filing acceptable or reasonable.  He gave his reasons in his determination.

BOR 2 risk assessment

3.The Director sent the applicant a Notice of Further Decision on 14 December 2016 notifying him that after granting him an extension of time in November 2016 to supply any further information, the Director had considered and rejected his BOR 2 risk claim.  He was informed in the same notice that he must lodge a notice of petition/appeal within 14 days from the date of that notice.  The applicant filed his notice of appeal on 4 January 2017 which was five days late but did not provide any reasons for the late filing.

4.There was an explanation to the TCAB on 5 July 2017 in a letter which appears to explain that he did send it by post but was told by the Department they did not receive it.  There was no application for late filing nor a statement of reasons for failing to file on time which was accompanied by documentary evidence in support.  On 22 September 2017 the adjudicator of the TCAB refused the applicant’s application for late filing of his notice of appeal because he did not find the applicant’s reason for late filing reasonable or acceptable.  He gave his reasons in his determination.

5.The applicant then filed a notice of application of leave to apply for judicial review on 9 October 2017 and proposed both the Director and the adjudicator of the TCAB as the proposed respondents.  The decisions in respect of which relief is sought are the Director’s decision dated 26 January 2016 and the adjudicator’s decision dated 22 September 2017; not the adjudicator’s decision dated 25 April 2017.

The Director’s decision dated 26 January 2016

6.The applicant seeks leave to apply for judicial review of this decision.  In his application and affirmation there is no indication or information forthcoming from him that he appealed this decision to the TCAB; in fact, he must exhaust all avenues of appeal before seeking leave for judicial review.  This court has had to make its own enquiries with the Immigration Department as to the history of the applicant’s claim and discovered that he did not lodge an appeal/petition of this decision to the TCAB on time.  As mentioned above, he filed a notice of appeal 10 months late and it was rejected.  He does not seek leave to apply for judicial review of that TCAB’s decision dated 25 April 2017 refusing to grant him an extension of time to file his notice of petition 10 months late.  None of these details come from the applicant’s affirmation.

7.The position is now that he hopes to judicial review the Director’s first decision when he did not appeal it to the TCAB; he did not exhaust all avenues of appeal.

The adjudicator’s decision dated 22 September 2017 (BOR 2 only)

8.The applicant explained in his affirmation that he did file his notice of appeal on time within 14 days but when he was told by an Immigration Department officer not the TCAB that the TCAB had not received it in the post he filed it again but by then it was late; five days late.  His complaint is that the adjudicator failed to make sufficient enquiry before refusing to grant him an extension of time to file it late.

9.The adjudicator set out in his decision the chronology behind the applicant’s late filing of his notice of petition.  The deadline was 30 December 2016 and he filed his notice on 4 January 2017 at the TCAB office which meant it was five days late but did not provide any reasons for the late filing on that day as required.  No reasons were given until he submitted a letter to the TCAB on 5 July 2017; those reasons were quoted in the decision.

10.His reason was simply that he had posted his appeal and then he said he was told by his Immigration Department case officer that his appeal was not received so he submitted it again but by then it was late.  The adjudicator considered section 37ZA(1)(b) and 37ZT of the Immigration Ordinance Cap. 115 and applied the statutory regime strictly; the applicant had to show special circumstances which would make it unjust to refuse his application for late filing of the notice of petition.  He failed to include a statement of reasons for failing to file on time nor did he accompany it with any documentary evidence in support.  The adjudicator referred himself to the authority of The Secretary of State for the Home Department v Begum [2016] ECWA Civ 122 (3 March 2016) and the three-stage approach suggested by the Court of Appeal when considering an extension of time application.

11.The adjudicator set out in his decision why he found the applicant’s reason for late filing unacceptable to expend the delay, he had no good reason for the breach.  The delay was a serious and significant failure to comply with the rules and there were no special circumstances which might make it unjust not to allow the late filing of the notice of position.  The adjudicator refused to allow it.

Leave to apply for judicial review

The TCAB decision/22 September 2017

12.In the applicant’s affirmation the only ground against the adjudicator’s decision was a failure by the adjudicator to appreciate and/or take into account the applicant’s contention “that his appeal was not delayed by any mistake”, he had filed it on time and when told it had not been received by the TCAB, he promptly filed it again.  It was the adjudicator’s mistake for failing to make sufficient enquiry before finalising his determination.

13.The test for granting leave is reasonable arguability and the burden is on the applicant.  I have to consider several crucial issues and review the decision with rigourous examination and anxious scrutiny.  I have to consider and ensure that there has been no deficiency in the process that the applicant has undergone which resulted in his claim being refused.

14.I have considered the adjudicator’s decision-making process, the chronology and history of the application process and how he came to determine the decision of 22 September 2017.  I do not find any error of law in his application of the Immigration Ordinance or the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme.  I see no evidence of procedural unfairness nor a failure to adhere to the required high standards of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my judgement, the applicant’s claim against the adjudicator of the TCAB is not reasonably arguable.

The Director’s decision/26 January 2016

15.As I said above, the court made its own enquiries and was informed by the Immigration Department that the applicant failed to appeal this decision in time and his late notice of appeal was rejected.  Moreover, the applicant in this application has not put forward any good reason to apply for judicial review of this Director’s decision where the delay here is 17 months and two weeks.  According to Order 53 rule 4, this application should be made within three months from the date of the decision and if there is a delay, there must be good reason for extending the period within which the application shall be made.

16.The delay is significant, there is no application for an extension of time, there is absolutely no explanation for the delay and there is no good reason for extending time.  The application, even on a review of the papers, does not raise any questions of general public importance.  Delay alone is enough to dispose of this application.

17.In summary, I refuse leave to apply for judicial review of the TCAB’s decision dated 22 September 2017 for the reasons above; it is not reasonably arguable.

18.As for the Director’s decision dated 26 January 2016, I refuse leave to grant an extension of time to file an application for leave to apply for judicial review to seek relief against this decision.

Dated 25^th day of July 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