Shathi Shahida Akther v. Torture Claims Appeal Board

HCAL 885/2018

[2020] HKCFI 490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 885 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:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Bangladesh who arrived in Hong Kong on 18 November 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 18 November 2016 or within 14 days of its early termination, but when it was prematurely terminated on 10 March 2015, she did not depart and instead overstayed and on 25 March 2015 surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her former husband and his fellow supporters of rival political party Awami League (“AL”). She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Shahjadpur, Badda, Gulshan, Dhaka, Bangladesh. While at school she became a supporter of the political party Bangladesh Nationalist Party (“BNP”) and joined its student wing. After leaving school, she continued to work for BNP, and later married her husband from the neighbouring village without realizing that he was an important member of rival party AL in his village until after their marriage.

3.Soon their relationship started to deteriorate due to their different political views, and after she was promoted to be the local organizational secretary of BNP, her husband demanded that she should quit her party as she would be in opposition to his party, and when she refused, he would become violent and abusive towards her, which became even worse after her father passed away in 2010 and eventually led to their divorce in June 2011. Thereafter the Applicant returned to live with her mother in her home village.

4.Several months later one night the Applicant heard her former husband with other men outside her home shouting her name and demanding her to leave BNP or else that she and her family would be in danger. Shortly thereafter they left.

5.One day in March 2012 while the Applicant was attending a party meeting held in her home village, a group of AL supporters including her former husband suddenly appeared and attacked her and her fellow BNP supporters with wooden sticks but the Applicant managed to escape from the scene unharmed.

6.On another occasion in late 2012 a group of AL supporters came to the Applicant’s home trying to break into the yard where she raised her poultry, and when the Applicant screamed for help, they stopped but threatened to kill her next time before they left.

7.After AL won the general election in 2013 and became the ruling party, their harassments and persecutions against BNP supporters became worse, and one night a group of AL supporters including the Applicant’s former husband came to her house and again demanded her to leave BNP, and when she refused, her former husband slapped and punched her on the face and slashed her hands with a knife causing serious bleeding, and only stopped when her mother screamed for help and her neighbours started to arrive that her former husband left with his followers.

8.After the assault, the Applicant became fearful for her life, and therefore applied to work as a foreign domestic helper so as to leave Bangladesh, which she did on 17 November 2014 when she departed and arrived in Hong Kong on 18 November 2014 to start her employment, but when her contract was prematurely terminated on 10 march 2015, she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

9.By a Notice of Decision dated 13 March 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 Claim”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“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”).

10.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her former husband or the AL supporters upon her return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 156 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from her home district in large cities such as Dhaka or Faridabad where it would be difficult if not impossible for her former husband or his AL people to locate her.

11.On 7 April 2017 the Applicant filed her appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, but by then she was out of time with her Notice of Appeal, as section 37ZS(1) of Part VIIC of the Ordinance requires that the notice of appeal must be filed within 14 days after notice of the Director’s decision has been given to an applicant unless late filing is allowed by the Board, and for which section 37ZT(1) of the Ordinance requires that the Applicant must include in the notice of appeal an application with a statement of the reasons for failing to file the notice within that period together with any documentary evidence.

12.In her Notice of Appeal, the Applicant did include a statement of her reasons in section 5 as follows:

“ I received the Notice of Decision by hand late around 20 March 2017 and I receive a copy of appeal form around 6^th April 2017. I appeal within 1 day as soon as I know that I can appeal. No interpretation of Notice of Decision was given.”

13.It would also be relevant to mention here that in section 2 of her Notice, the Applicant had set out her following grounds of appeal:

“ The decision reached 13 March 2017 is based on assumptions which is unfair. The Director has easily relied on assumptions like “low intensity of ill-treatment of AL” How can they know that it is low intensity. They have not even considered doing Medical Examination on me to check the intensity of the treatment. They stabbed me and the Director of Immigration say it is absence of ill-treatment. This is very unfair.

They think that it is very easy to relocate inside Bangladesh. It is very difficult to [re]locate. The police have record of people relocating to new area. The enemies can easily find me. If I am found then they will definitely kill me. They will not only threaten me but really kill me or abuse me like rape.

Stabbing is a torture and I am shocked that immigration think it is not torture.

I request the Director to humbly consider my appeal.”   

14.On 12 April 2018 the Board refused to allow the Applicant’s late filing of her Notice of Appeal upon finding her reason for the delay not acceptable, and that it was not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance had been shown [17].   

15.On 21 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  that the Board erred in failing to maintain high standard of fairness by not administering that the decision be delivered to the Applicant within reasonable period and as a result the Applicant had suffered prejudice as she was not given the reason for the refusal of her appeal;

(2)  that the Board failed to apply the minimum standards of procedural fairness required in its decision-making process in failing to ensure that she would receive its decision within a reasonably period of time.  

16.While these complaints may not appear to be entirely relevant to the Board’s reasons for refusing the late filing of her Notice of Appeal, given the serious implications of the Decision on the Applicant, high standards of fairness require that the Decision be considered by the court with rigorous examination and anxious scrutiny, of which I shall start by first referring to the statutory requirements which the Board is to undertake when dealing with such application under section 37ZT(2) of the Ordinance as follows:

“ 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 –

  (i) 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

  (ii) any other relevant matters of fact within the knowledge of the Board.”

17.Subsection (3) then provides that:

“ 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.”

18.In considering that the Applicant was late with her Notice of Appeal, the Board made the following finding of facts in its decision:

“ 1. The Notice of Decision was dated 13 March 2017. By adding the statutory 14-day period allowing the Appellant/Petitioner (hereinafter referred to as “the Appellant”) to file her Notice of Appeal/Petition (“the Notice of Appeal”) and 2 days for service takes the filing date to 29 March 2017.

The Notice of Appeal submitted by the Appellant

2. This was submitted by the Appellant at the office of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and signed and dated 7 April 2017.

3. This meant that the Notice of Appeal submitted by the Appellant was:

·  Late, because it was submitted after the statutory period allowed.” 

19.On this basis the Applicant was therefore late by 9 days with her Notice of Appeal, of which the Board then went on to apply the principles handed down by the English Court of Appeal in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, and approached the application by applying the 3-stages enquiry as it so stated in paragraph 10 of its Decision:

“ (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. [4]) 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. As listed in para [35] of the judgment in Denton: “Thus, the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it …”      

20.Having thus set out the principles of the 3-stages approach, the Board proceeded to make the following findings in respect of the Applicant’s late filing of her Notice of Appeal:

“ 15. The Appellant’s explanation for late filing of his application is that she didn’t receive the decision until 20 March.

16. The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in SSHD v Begum. Those principles are that there is a need to enforce compliance with rules as set out in the Ordinance; and the need for this type of application to be conducted efficiently and at proportionate cost.

17.  The Board does not accept that the Appellant’s reasons are sufficient to explain the delay in lodging her Notice of Appeal and notes that it is conclusively presumed by law that she received the Notice of Decision in time. The Board is not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.”     

21.While I accept that the Board was entitled to find the Applicant’s explanation that she did not receive the Director’s decision until 20 March unacceptable in the absence of any documentary evidence in support of such claim, it did not however appear to have proceeded to make any assessment as to whether such a delay was to be regarded as a serious or significant failure to comply with the rules, when it appears to me reasonably arguable that a delay of 9 days cannot on any view be regarded as serious or significant, let alone in the circumstances of the Applicant when she was no longer represented by DLS.

22.Furthermore, the Board did not appear to have proceeded to evaluate all the relevant matters of fact within its knowledge as required by section 37ZT(2) of the Ordinance which it had directed itself at [6] of its Decision, in particularly the merits of the Applicant’s appeal by reference to her grounds as set out above, as it has been so held by the Court of Appeal in Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019 when Hon Lisa Wong J in giving judgment of the court stated:

“ 23. Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, 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].

27.  For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.” 

23.In the premises and for the reasons given, I accordingly grant leave to the Applicant to apply for judicial review of the Board’s Decision, and in accordance with Order 53 rule 5 of the Rules of the High Court, Cap. 4A, the Applicant shall file and serve an originating summons within 14 days from the date of this decision based on the grounds (1) that the Board failed to assess the seriousness or significance of the Applicant’s failure to comply with the rules as to the filing of her Notice of Appeal, or if it had it failed to give any or adequate reason for its assessment; and (2) that the Board had failed to consider the merits of the Applicant’s appeal which is a relevant matter of fact within the Board’s knowledge within the meaning of section 37ZT(2)(b) of the Ordinance, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 20^th day of March 2020. 

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