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

HCAL 600/2018

[2019] HKCFI 1010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 600 of 2018

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 12 October 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.The applicant is a 28-year-old national of India who last arrived in Hong Kong on 18 October 2014 with permission to remain as a visitor up to 26 October 2014 when he did not depart and instead overstayed until 10 February 2015 when he was arrested by the police. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Kolkata, India.  After leaving school he worked as a salesman in a company selling mobile phones and accessories in the market.  The company was owned by AB, an influential man in the local community known to have strong political connections.

3.In 2012 the applicant borrowed 5.5 million Indian rupees from AB to start his own mobile phones business repayable by regular instalments.  Business were initially good and he was able to keep up with his loan instalment payments to AB without problem.

4.However, on one occasion in 2014 he travelled to Hong Kong and spent 2.5 million rupees purchasing phones supplies for his business, but when he subsequently lost his goods in Hong Kong, he was afraid to return to India as without the goods he would not be able to carry on with his business or to repay his loan to AB whom he had seen beaten up people for failing to repay him, and after his arrest for overstaying in Hong Kong and was referred to the Immigration Department, he was told by his mother that AB and his men had come to his home looking for him and warned that they would kill him if he still failed to repay his loan, and so he raised his non-refoulement claim for protection, for which he later completed a Non-refoulement Claim Form on 7 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 28 April 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from AB upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from him other than some verbal threats made to his mother, that it was a private monetary dispute between them without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with work experience to move to other part of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for AB or his men to locate him.

7.On 27 July 2017 the applicant filed a notice of appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but by then he would have been more than 2 ½ months late with his notice of appeal as section 37ZS of Part VIIC of the Immigration Ordinance requires that an appeal must be filed within 14 days of the Director’s decision unless its late filing is allowed under section 37ZT which provides that:

“ (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 reasons 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.”

8.In his Notice of Appeal/Petition dated 27 July 2017 the applicant did make an application for late filing of his notice, for which he explained that he never received the Director’s decision from the Immigration Department or from the Duty Lawyer Service, and hence he was not aware of the decision until later when he reported to the Immigration Department, and it was only then that it was re-sent to him on 24 May 2017, but as he was unable to find anyone to help him to prepare his notice of appeal until much later that he was finally able to file his notice on 27 July 2017.  No documentary or other supporting evidence was provided by him for his application.

9.On 12 October 2017 his late filing of his notice of appeal was refused by the Board which was prepared to accept that he may in fact not have received the Director’s decision until 24 May 2017 when he would still be out of time by more than 1 ½ months by the time he eventually filed his notice, and for which it was not satisfied that there was any reason of special circumstances that would make it unjust not to allow his late filing, as the adjudicator explained in his decision as follows:

“ 15.  In the present case, the Applicant was not in detention in CIC or elsewhere when the Notice of Decision was sent to him. From the Applicant’s Immigration History at paragraph 7 of the Notice of Decision, it appears that he lodged his non-refoulement claim on 12 February 2015 and was released on recognizance on 20 March 2015. I infer from the Notice of Decision having been addressed to the Applicant care of the CAT Office that he was assisted in the completion of his non-refoulement claim form dated 7 November 2016 by the Duty Lawyer Service, which also provided representation at the interview with the immigration officer on 23 November 2016.

16.  If he had sought its assistance, the Duty Lawyer Service would have been available to explain the Director of Immigration’s Decision to the Applicant and to draw to his attention the requirement that any appeal be filed with 14 days.

17.  There are no other matters known to me or revealed by the factual basis of the Applicant’s claim, which might amount to special circumstances, which would make it unjust not to allow the late filing of the appeal.”   

10.On 10 April 2018 the applicant filed his Form 86 (dated 9 March 2018) for leave to apply for judicial review of the Board’s decision, but no grounds for seeking relief was given in his Form, and in his supporting affirmation of the same date he simply stated that he was not satisfied with the Board’s decision and asked that the Court should make a fair decision of his claim.

11.As he failed to attend the scheduled hearing of his application without providing any explanation, and having ascertained that the notice of hearing had been sent to his last reported address and not returned, I decided to proceed to deal with his application in his absence and on paper. 

12.He was however again out of time with this application, on this occasion by about three months, as Order 53 Rule 4(1) of the High Court Ordinance, Cap.  4 requires that an application for leave to apply for judicial review 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.

13.In considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.In the applicant’s case, as the last day of the three-month period for him to file his Form 86 fell on 12 January 2018, he was therefore late by three months with his application when it was filed on 10 April 2018, for which he has not given any explanation.

15.A delay of three months must be regarded as significant or substantial, and in the absence of any reason for such delay, or of any ground being put forward by the applicant for challenging the Board’s decision, I am unable to see any merits or prospect of success in his intended application.

16.Having proceeded to consider the Board’s decision with rigorous examination and anxious scrutiny, I agree that the adjudicator was entitled to find, as he did on the basis of the materials and information before the Board and within his knowledge, that there was no reason of special circumstances that would make it unfair not to allow the applicant’s late filing of his Notice of Appeal/Petition, and I do not find any failure on his part to apply high standards of fairness in his decision not to allow the late filing of the applicant’s notice.  

17.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and dismiss his application accordingly.

Dated the 24^th day of May 2019.

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