Ahmed Gaber Ahmed Elsayed v. Torture Claims Appeal Board

HCAL 742/2018

[2019] HKCFI 1340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 742 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 Bruno Chan:

1.  Leave to apply for judicial review of the Torture Claims Appeal Board (“the Board”)’s decision dated 30 January 2018 be granted to the applicant on the following grounds:

 (a) the Board’s finding that there were no special circumstances that it would be unjust not to allow the Applicant's late filing of his notice of appeal was Wednesbury unreasonable; and

 (b) the Board had failed to consider the substance of the Applicant’s non-refoulement claim which is a relevant matter of fact within its knowledge within the meaning of section 37ZT(2)(b) of the Ordinance; and

2.  The applicant shall file an originating summons within 14 days from the date of this decision on the grounds stated above and serve all relevant documents on the Board as the respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Egypt who arrived in Hong Kong on 8 December 2016 with permission to remain as a visitor up to 8 March 2017 but was arrested by police on 23 January 2017 for breaching the condition of stay by taking up unapproved employment, for which he was subsequently convicted and sentenced to prison for six weeks.  Upon discharge from prison he raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Egypt he would be persecuted or harmed or killed by the Egyptian authorities for his previous involvement in the now banned political party Freedom and Justice Party (“FJP”).  He has since been released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Alexandria, Egypt.  After obtaining a bachelor’s degree in geology, he worked in the Faculty of Science of Alexandria University, and in about 2011 joined FJP as a member.

3.In 2012 the FJP leader Mohamed Morsi was elected as the President of Egypt, but in July 2013 mass protests erupted across the country which led to a military coup that eventually overthrew Morsi with the establishment of a new government.  As a result Morsi was imprisoned with many of his followers and FJP supporters also arrested and detained by the military and the police including the Applicant after FJP was banned by the new government.

4.In May 2015 while he was trying to leave Egypt, the Applicant was arrested at the airport and was brought back to the police station where he was detained and tortured by the police for about a week before being transferred to a detention center for political detainees and prisoners and was kept there for about one year before he was released without charge.

5.However, when he tried to return to work in Alexandria University, he was told that he had been dismissed by the university for being a former FJP member, and after his appeal to a court in Alexandria was rejected, he had an angry confrontation with the judge over the dismissal of his appeal that he was again arrested by the police and charged for insulting the judge, and was only released a week later after putting up a bail.

6.Thereafter the police had come to search his home twice, and later at his trial for insulting the judge, the Applicant just sent his lawyer to court to argue his case, but when he was informed by his lawyer that he had been convicted and sentenced to two years’imprisonment, the Applicant left Egypt on 29 August 2016 for China, and eventually arrived in Hong Kong in December 2016 where he overstayed and raised his non-refoulement claim for protection, for which he later completed a Non-refoulement Claim Form on 31 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 18 September 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”).

8.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that he will face any real and substantial risk of harm or being arrested by the authorities upon his return to Egypt due to his limited knowledge of FJP that it was doubtful about his claim of his involvement in the party that he would not be targeted by the Egyptian authorities or the police or that they would still have any adverse interest in him, that reliable and objective Country of Origin Information (“COI”) show that the situations faced by former FJP members and supporters in Egypt have since improved with much reduced risk of being tortured or ill‑treated by the police due to various implementation of legal and judicial measures to protect the citizens that it was not accepted that the Applicant would still face any real or substantial risk of harm or ill-treatment upon his return to Egypt, or that his such fear was well-founded in the circumstances.  

9.On 12 October 2017 the Applicant filed his Notice of Appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision.  He was however late with his notice as section 37ZS(1) of Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) provides that a person who wishes to appeal against a decision of the Director must file with the Board the notice of appeal within 14 days after notice of the decision is given to him unless late filing is allowed.

10.In the Applicant’s case, the Director’s decision was sent to his DLS on the same dayof 18 September 2017, and hence the 14-day period within which he was to file his notice ofappeal expired on 4 October 2017, and therefore the Applicant was late by about eight days.

11.For late filing of notice of appeal, section 37ZT of the Ordinance provides as follows:

“ (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, theBoard 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.”  

12.In his notice of appeal which was completed by him in person and written in Arabic, the Applicant did include an application for late filing with a statement of his reasons as follows:

“ I was sick and I went to the hospital in {Jordan?} and I have the papers supporting that [illegible].”

13.His application was also accompanied by several forms/documents from the Queen Elizabeth Hospital for physiotherapy out-patient treatments for his dislocated shoulder sustained on 20 September 2017.

14.On 30 January 2018 his application for late filing of his notice of appeal was refused by the Board for the following reasons stated in its decision:

“ 8. In his reasons for the late filing of the notice of appeal contained in Section 5 of the form, the Applicant said that he was sick and went to the hospital in Jorden. He indicated that he had documents to prove this and submitted with the form documents from Queen Elizabeth Hospital establishing that he consulted the physiotherapy department as an out-patienton 20 September 2017 with a dislocated shoulder. He was given a follow-upappointment as an out-patient at the A & E Fracture Clinic for 3 October 2017.

9. The statutory regime for late filing of notice of appeal is a strict one. It is the duty of a claimant under the Ordinance to establish his or her claim and to that end he or she must comply with time limits: Section 37ZA(1)(b) of the Ordinance.

10. If the time limit for filing an appeal is not complied with, the claimant is obliged to give reasons for non-compliance, accompanied by anydocumentary evidence in support of those reasons. The Board must then, taking into account only those reasons and supporting documentary evidence if any, decide whether or not to allow late filing. This will only be allowed where the Board is satisfied that, by reason of special circumstances, it would be unjust not to do so.

11. The statement of the Applicant that he was sick at the time and therefore by implication was unable to file the notice in time is I find disingenuous. He was not sick, he simply had a dislocated shoulder and was not admitted into hospital. If he had any difficulty in completing the necessary notice, the Applicant had ample time in which to consult the duty lawyer to assist him in completing the form.

12. There are no other relevant matters of fact within my knowledge amounting to special circumstances which would make it unjust not to allow the late filing of the Applicant’s notice of appeal.”

15.On 27 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and provided much more details of his reasons for his late filing of the notice of appeal which he claimed to be events beyond his control,as essentially that he was then due to attend at DLS on 21 September 2017 to receive the Director’s decision and for further instruction, but that on 20 September 2017 he was attacked and robbed by several men on the street which resulted in injuries to his head and bruises over his body with a dislocated shoulder, that he immediately went to the Queen Elizabeth Hospital for treatments, and therefore missed his appointment with his DLS lawyer on the following day, that it was not until 29 September 2017 when he was able to contact his lawyer again but was told that his case had since been closed, and that therefore he had to complete his notice of appeal by himself but due to his inability to read or write English that it was with much difficulty and delay that he could only complete and file his notice of appeal on 12 October 2017, which was eight days past the deadline,and hence he argues that it was unfair and unreasonable for the Board to refuse his late application for such a short delay caused by a medical emergency beyond his control.

16.In his supporting affirmation he produced a copy of his medical report from Queen Elizabeth Hospital stating the following:

“ The above patient was attended by me at the Accident & Emergency department of Queen Elizabeth Hospital at 21:06 hrs on 20/09/2017 for alleged assault.

He sustained injury to his right shoulder in an alleged assault by one person on 20/09/2017.

Medical examination revealed multiple abrasion on his left arm and clinically right shoulder dislocation.

His dislocated right shoulder was reduced in our department and X-ray did not show any fracture.

The clinical diagnosis was right shoulder dislocation and multiple abrasion.

He was released and discharged.

He was referred to our fracture clinic for follow up which he did not attend.”

17.He also produced statements by two persons who appear to be his friends or neighbours claiming to have noticed that he was seriously ill or injured on 20 September 2017 and had taken care of him for several days at that time, as well as a letter from the TsimSha Tsui Police Division confirming that he did on that day make a report to the police of the attack.

18.The Board of course did not at the time have the benefit of any of these information which according to their dates were obtained by the Applicant only subsequent to the Board’s decision, but I agree with the Applicant that a delay of eight days was relatively short and certainly cannot be regarded as serious or significant, and that it may in the circumstances warrant a more sympathetic consideration from the Board. 

19.As it seems to me that the Board did not disbelieve the Applicant’s explanation of having been to the hospital for a medical reason, but I am surprised by its finding that the Applicant’s claim in his statement of reasons of being sick rather than having a dislocated shoulder as “disingenuous” given the language disparity and translation in his case, and that the Board appeared to have just casually brush aside the fact that the Applicant had dislocated his shoulder at the material time which required follow-up consultations at the physiotherapy department as something not serious enough to amount to special circumstances for allowing the late filing of his appeal without giving any reason or explanation why it was not so accepted, or as argued by the Applicant at least to require further clarification with documentary evidence such as a proper medical report from him about the cause and severity of his injury before arriving at its conclusion.  Surely high standards of fairness would in the circumstances have expected the Board to give the Applicant “every reasonable opportunity to establish his claim”: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.

20.In addition, the fact that the late notice of appeal was completed by the Applicant in his own hand in Arabic instead of by a lawyer from DLS would surely go to suggest that maybe by then he no longer had access to legal assistance, and hence the Board’s assumption that he had had ample time to consult the duty lawyer to assist him in completing the form may be argued to be without proper basis.  Accordingly I am of the view that it is reasonably arguable that the Board’s refusal to allow the Applicant’s late filing of his notice of appeal was in the circumstances not Wednesbury reasonable.

21.Further, as the Court of Appeal has recently held in Re Qasim Ali CACV 547/2018,[2019] HKCA 430, 8 April 2019, that in considering whether it would be unjust not to allow the late filing of the notice of appeal, the Board should take into account the merits of the intended appeal:

“ 23. Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Development v Begum [2016] EWCA Civ 122, on which the Board had directed itself at [16] of the Board’s Decision, even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be ‘unjust’ not to do so by reason of ‘special circumstances’: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor.  See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019,[16] – [20].”      

22.Clearly in this case the Board did not take into account of the merits of the Applicant’s intended appeal, and accordingly I am of the view that the intended application for judicial review is reasonably arguable on this basis.

23.In the premises and for all the above reasons, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds (1) that the Board’s finding that there were no special circumstances that it would be unjust not to allow the Applicant’s late filing of his notice of appeal was Wednesbury unreasonable; and (2) that the Board had failed to consider the substance of the Applicant’s non-refoulement claim which is a relevant matter of fact within its knowledge within the meaning of section 37ZT(2)(b) of the Ordinance.

24.In accordance with Order 53, rule 5 of the Rules of the High Court, Cap 4A, the Applicant shall file an originating summons within 14 days from the date of this decision on the grounds stated above, and serve all relevant documents on the Board as the respondent and the Director as interested party. 

Dated the 13^th day of November 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