Samad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL328/2018

[2019] HKCFI 2339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 328 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Josiah Lam:

Leave to apply for judicial review be granted.

Observations for the Applicant

Background

1.The Applicant is a national of Bangladesh. He is now aged 38 (DOB: 12 September 1981).

2.The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”). He was a member of the Bangladesh Nationalist Party (“BNP”).

3.The Applicant said he participated in BNP’s activities. In 2007, some AL people attacked him outside his home. He was injured but did not report the matter to the Bangladesh authorities or police. He fled to Dhaka and planned to leave the country.

4.In mid-2007, the Applicant left Bangladesh to work in Singapore. He returned to Bangladesh a year later when he failed to renew his visa in Singapore. He did not go home but stayed at his aunt’s place as he learnt the AL people were still after him.

5.On 21 August 2014, the Applicant left Bangladesh again. This time, he went to China.

6.On 15 February 2015, the Applicant sneaked into Hong Kong. He was arrested by the police. He lodged a non-refoulement claim on 22 February 2015.

7.The Applicant heard from his family in Bangladesh that the AL people had been constantly harassing them and were still looking for him. The enemies had burnt down one of their two houses. The Applicant’s father complained to the police but the police did not take any action. Instead, they told the Applicant's father to join AL to avoid trouble.

8.The Applicant's family later moved to live in a relative’s place for safety.

9.The Applicant said the Bangladesh government were under the control of AL, which had come into power since 2009. He did not believe he could get state protection.

10.The Applicant said internal relocation was not feasible. He thought AL was powerful and its members could locate him in the country.

11.On 18 October 2016, the Director of Immigration (“the Director”) rejected the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2]  (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

12.By a notice of appeal (“NOA”) dated 28 October 2016, the Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board received the NOA on 7 November 2016. On 14 February 2018, the Adjudicator refused the Applicant's late filing of appeal.

13.On 2 March 2018, the Applicant applied for leave for judicial review.

Respondents

14.The Unified Screening Mechanism is a two-tier process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.

15.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents.  The Board is the first putative respondent; the Director is the second putative respondent.

16.In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. I shall deal with his application in relation to the Board's decision only.

The Director's decision

17.In his decision dated 18 October 2016, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

The Board's decision

18.A notice of the Director's decision was sent by post on 18 October 2016 to the Applicant c/o the Duty lawyer service (“DLS”), which had been representing him.

19.The Applicant was arrested by the police on 4 August 2015 for illegal employment. He was convicted on 6 April 2016 and sentenced to imprisonment of 22 months and 2 weeks. When the Director issued his decision on 18 October 2016, the Applicant was remanded in Tong Fuk Correctional Institution in Lantau Island.

20.Since the Director's decision was sent to the Applicant’s lawyer by post, the notice of decision was presumed in the absence of evidence to the contrary to have been served or given to the Applicant on the second working day after it was sent.[6]  The Applicant thus had 14+2 days to file his appeal to the Board after 18 October 2016. The deadline was 3 November 2016 (Thursday).

21.A duty lawyer served the Director's decision on the Applicant at Tong Fuk Correctional Institution on 27 October 2016. A Bengali interpreter was there to provide assistance.

22.The Applicant appealed to the Board. His notice of appeal (“NOA”) was dated ’28-10-2016’, which was a Friday.

23.The Applicant stated in Section 2 (Appeal/Petition) of the NOA that he still feared for his life as his enemies would kill him.

24.Section 5 of the NOA was titled ‘Application for Late Filing of Notice of Appeal/Petition’. It had a printed explanation which read “A person who wishes to appeal/petition against the decision of the immigration officer must file this Notice within 14 days after notice of such decision is given to him. If you are filing this Notice after the expiry of the aforesaid 14-day period, you must include below a statement of the reasons for late filing. You must also submit relevant documentary evidence in support of such reasons.”

25.The Board received the NOA on 7 November 2016 (Monday). It was four days late. In Section 5 of the NOA, there was only one word written there “NIL”.

26.On 7 November 2016, the Board sent a letter to the Applicant at Tong Fuk Correctional Institution. It said the Applicant’s appeal was filed after the expiry of the 14-day period so the Adjudicator would decide, as a preliminary decision without a hearing, whether the Board would allow the late filing.

27.On 18 August 2017, the Board sent a letter to the Applicant, pointing out the Board considered his NOA was filed late so he had to complete Section 5 of the NOA. He should also provide the date on which the DLS served the Director's decision on him. The Board warned the Applicant that if he failed to do so, it would be assumed he decided not to provide reasons for his late filing of appeal.

28.The Board got no response from the Applicant.

29.The Adjudicator referred to the legal requirement of s. 37ZT of the Immigration Ordinance in relation to late filing of appeal. He considered the Applicant had not provided any reasons for his delay and he refused the Applicant’s late filing of appeal.

Grounds for judicial review

30.In his affirmation, the Applicant complained the Director's decision was served on him late when he was in Tong Fuk Correctional Institution. He said he was not educated and thus required help to complete the NOA. There were only a few days left for him to complete the document. The Applicant said he was not legally represented for appeal to the Board. He claimed he was provided with incorrect guidance when he made the application. He said “That the actual notice itself was delivered late and without the requisite application for filing out of time with reasons was not the fault of mine as it was outside of my care and control upon instructing the welfare officer.”

31.Regarding the Director's finding, the Applicant made certain complaints in his affirmation. I would not deal with those complaints as I should deal with the Board's decision only (see paragraph 16 above).

Court hearing

32.The hearing took place on 4 July 2018 and 12 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.

33.The Applicant applied for the proceeding to be adjourned to after 17 August 2018, when his legal aid appeal would be heard. [The Applicant applied for legal aid on 12 March 2018. The Director of Legal Aid refused his application on 23 May 2015. The Applicant appealed.]

34.I refused the Applicant's application for adjournment. There is no guarantee that he would win the legal aid appeal. I should not adjourn the current proceeding for something uncertain.

35.The Applicant confirmed all the grounds of judicial review were in his affirmation.

36.The Applicant said when the Director's decision was issued in October 2016, he was in prison. A duty lawyer came to serve the Director's decision on him. There was an interpreter to provide language assistance.

37.The Applicant said he knew he had to file his appeal within 14 days after 18 October 2018. After the duty lawyer had left, the Applicant asked a Nepalese inmate to fill out the NOA for him. He communicated with the Nepalese inmate in Hindi and there was no difficulty in communication. The Applicant said he saw the Nepalese inmate put down the date on the NOA, which was ‘28-10-2016’. The Applicant gave the completed NOA to a prison officer the next morning.

38.The Applicant claimed he had filed his appeal in time. He was not late so he had not asked his Nepalese inmate to put down anything in Section 5 of the NOA to apply for late filing.

39.The Applicant said he was released from Tong Fuk Correctional Institution on 6 July 2017. Then he was further detained by the Immigration Department for 27 days. He was freed in early August 2017.

40.The Applicant said he received a letter from the Board (dated 18 August 2017) asking him to fill out Section 5 of the NOA as to why he was late in filing his appeal. He then went to the TCAB office with a Bangladesh friend. His friend could speak English. The letter was shown to an officer there. The officer told him to wait. Later, the officer told him to go and said the Applicant would receive another letter. The Applicant said he was not asked by the officer to write down anything.

41.The Applicant produced five documents in court. One was a copy of the NOA. The Board sent him a copy of that with a letter dated 18 August 2017. The letter told the Applicant that he had filed his appeal after the expiry of the 14-day period so the Adjudicator must decide as a preliminary decision without hearing whether the late application would be allowed. The letter asked the Applicant to complete section 5 of the NOA. The letter also said the Board was aware the Director's decision was delivered to the Applicant c/o the DLS. The Board asked the Applicant to provide the date he got the Director's decision from the DLS. The letter warned the Applicant that he must let the Board have the required details by completing Section 5 and return the completed form by 25 August 2017. The Board further warned the Applicant that if it did not receive the required information by the deadline, it would assume the Applicant decided not to provide reasons for his late filing of appeal. Then the Adjudicator would proceed to make the preliminary decision whether the late application of appeal should be allowed.

Court enquiry

42.This court made enquiry with the DLS and the Correctional Services Department (“CSD”).

43.The DLS said in its letter dated 12 July 2018 that a lawyer and an interpreter went to Tong Fuk Correctional Institution to serve the Director's decision on the Applicant on 27 October 2016.

44.The CSD replied by two letters dated 20 July 2018 and 21 August 2018.

45.In the first letter, the CSD said their computer system recorded an outgoing letter from the Applicant to the Board on 2 November 2016. The prison’s practice was to deliver outgoing letters to the posting box within 48 hours (except general holidays).

46.In the second letter, the CSD confirmed its staff collected the Applicant’s NOA on 2 November 2016 (Wednesday). It was to be delivered to the post box 50 metres outside the prison.

47.The CSD said if the Applicant had really given his NOA to a prison officer on 29 October 2016 (Saturday), the letter would be handled by the mailing staff in the prison on 31 October 2016 (Monday) and it would be delivered to the post box no later than 1 November 2016 (Tuesday).

Discussion

48.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

49.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[7] Nevertheless, it is said in Re Islam Rafiqul: –

The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. [8]

50.The duty lawyer, in the company of a Bengali interpreter, served the Director's decision (dated 18 October 2016) on the Applicant at Tong Fuk Correctional Institution on 27 October 2016. That was nine days after it had been issued by the Director. Nevertheless, the Applicant said he was aware he had to file his appeal to the Board within 14 days from the date of the Director's decision. [Apparently, the duty lawyer had told him so.]

51.Although the Director's decision was served on the Applicant late, the Applicant was able to complete the NOA with the help of a prison inmate on 28 October 2016 (Friday).

52.The Applicant alleged he gave the NOA to a prison officer the next morning, i.e. 29 October 2016 (Saturday). However, the CSD said if the Applicant really gave the document to a prison officer then, the mailing staff in the prison would handle it on 31 October 2016 (Monday). The NOA would be delivered to the post box no later than 1 November 2016 (Tuesday).

53.According to the CSD’s computer record, the Applicant only gave his letter to a prison officer on 2 November 2016 (Wednesday). They would send it to the post box within 48 hours. That meant the NOA would be in the post box no later than 4 November 2016 (Friday). Given the efficiency of the Post Office in Hong Kong, the NOA should reach the Board after the weekend.

54.The Board indeed received the NOA on the following Monday, i.e. 7 November 2016.

55.Apparently, the CSD’s computer record was accurate. The Applicant gave the NOA to the prison only on 2 November 2016, despite he had the document completed earlier and dated ‘28-10-2016’.

56.The Applicant was not late when he gave the NOA to the prison on 2 November 2016. [The deadline was 3 November 2016.] However, when it reached the Board through the normal prison and posting procedures it was 7 November 2016. That was 4 days after the deadline.

57.It was when the Applicant's NOA reached the Board that mattered, not when it was completed or in the case of the Applicant when it was given to the prison.

58.In the circumstance, the Applicant was obliged to fill in Section 5 of the NOA to explain for the delay that would certainly arise.

59.The Applicant did not fill in Section 5 of the NOA in the first place. Most likely, when he prepared the document and then gave it to the prison he had not thought it might be late when it reached the Board. 

60.The Board was aware the Applicant was in prison then. It immediately sent a letter to the Applicant at Tong Fuk Correctional Institution. There was no reply.

61.The Board apparently knew the Applicant had regained his liberty. On 18 August 2017, it sent a letter to him at his Yuen Long address.

62.The Applicant got the letter. He went to the Board with his friend to make enquiry. However, an officer there first told him to wait. Then the Applicant was told he could leave and he would get another letter later.

63.I cannot be sure what happened in the TCAB office. The facts remain that the Applicant had not provided any explanation to the Board as to why the NOA only reached the Board on 7 November 2016, four days after the deadline of 3 November 2016.

Late filing of appeal to the Board

64.s. 37ZS(1) of the Immigration Ordnance states: –

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).

65.s. 37ZT of the same ordinance provides for late filing of notice of appeal to the Board: –

(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 reason 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.

66.The Adjudicator considered the Applicant’s appeal was late and there was no reason given to explain for the delay. He did not allow the late application.

67.The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 (3 March 2016) laid down a 3-stage approach:

(1) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules.  If the breach is serious or significant, the decision maker then considers the second and third stages.

(2) The second stage is to consider why the failure occurred.  If there is a serious or significant breach and no good reason was given for the breach, then the decision maker moves to the third stage.

(3) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. In considering all the circumstances of the case, the decision maker also takes into account (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice and directions and court orders.

68.The Applicant's NOA was only late for four days including an intervening weekend. The Adjudicator should not consider that to be a serious or significant delay.

69.Even if the Adjudicator would regard the 4-day delay as substantial, he should consider why there was such a delay. The Adjudicator got no explanation from the Applicant. However, paragraph 10 of the Director's decision dated 18 October 2016 clearly stated the Applicant was convicted on 6 April 2016 and sentenced to imprisonment of 22 months and 2 weeks. The Adjudicator would be aware of that. He should know that posting from the prison had certain procedures and had to take more time than posting by a free man. He should also consider the Director's decision was sent to the Applicant c/o the DLS. The DLS would take time to serve the Director's decision on the Applicant in the prison.

70.The Adjudicator did not state in his decision whether he had considered the above issues and if he did whether his decision would be different.

71.In the circumstance, it is reasonably arguable that the Adjudicator in refusing the Applicant's late filing of appeal had not considered all relevant matters of fact within his knowledge. I would grant the Applicant leave to apply for judicial review against the Adjudicator's decision. The Applicant has to issue an originating summons in compliance with Order 53 rule 5(5) of the Rules of the High Court within 14 days after the grant of leave.

Dated the 23^rd day of September 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

[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] CACV 54/2018, para 45.

[6] S. 37ZV of the Immigration Ordinance, Cap. 115.

[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[8] CACV 219/2018 [2018] HKCA 570, para 14(1).