Case Document

100%Judiciary

HCAL 2576/2018

[2020] HKCFI 1905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2576 of 2018

BETWEEN

	Cenas Febyen Celes	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Respondent
	Director of Immigration	2^nd Respondent

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.The applicant was absent for the hearing fixed on 12 June 2019 and her application was therefore dismissed for want of prosecution.

3.By summons dated 10 July 2019, the applicant applied to set aside the above ex parte order under Order 32, rule 6 of the Rules of the High Court (“RHC”).

4.She attended the hearing on 29 August 2019 for her application. She explained that she had removed from her address at Flat B, 2/F, 26, Pau Cheung Square, Yuen Long, N.T., HK to her new address. But she did not duly inform the Court. That is why she did not receive the court’s Notice of Hearing for the 12 June 2019 hearing.

5.This Court accepted her explanation and set aside the ex parte Order.

6.The Board’s decision dated 19 October 2018 refused to extend her time to file the Notice of Appeal dated 6 June 2018 (“NOA”). This Court will consider this decision below. As will be seen below, this Court decides that leave should be given to the applicant to apply for judicial review of this decision, it would not be necessary for me to deal with the Director’s decision at this stage.

The applicant

7.The applicant is a national of the Philippines. On 7 February 2015, she came to Hong Kong as a domestic helper and was permitted to stay until 7 February 2017. Upon termination of her contract, she did not leave Hong Kong. She applied for non‑refoulement claim by written submission.

8.She claimed that if refouled, she would be harmed or killed by her ex-boyfriend. Besides, she also worried that the New People’s Army would bring social disorder to the Philippines

The Director’s Decision

9.The Director considered her application in relation to the following risks:

a.risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

10.By Notice of Decision dated 17 May 2018 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board’s Decision

11.The applicant appealed to the Board by NOA.

12.The Board considered that her application for the appeal was 4 days’ late. See paragraph 8 of the Board’s Decision.

13.The applicant explained that her lawyer told her that the Director’s Decision was received on 24 May 2018. The deadline for filing the NOA would therefore be 7 June 2018 and she was within time.

14.The Board did not accept her explanation. It held that the applicant had not provided documents or other supporting evidence. Nor was there any special circumstances which would make it unjust not to allow the late filing of the appeal. It refused the applicant’s late filing application.

Application for leave to apply for judicial review

15.In her Form 86 under Order 53, rule 3 RHC, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

16.In her affirmation in support of her application, the applicant said that she did not understand why her appeal was rejected without a hearing.

17.In other words, she is applying for leave to apply for judicial review of the Board’s decision in not extending time for her to file her NOA.

DISCUSSION

18.Having considered the facts of the matter, I decide that leave should be granted to the applicant to apply for judicial review of the Board’s Decision for the reasons below.

a. Section 37ZS(1) of the Ordinance provides that the applicant must file her NOA within 14 days after notice of the decision is given to her, unless late filing is allowed.

b. The Board held that the applicant’s filing of the NOA was 4 days’ late.

c. Under section 37ZV(2)(b) of the Ordinance, the Director’s Decision was presumed to have been served and received on the second working day after it was so sent. The Director’s Decision was dated 17 May 2018.

d. There was no evidence as to the date it was sent to the applicant. The applicant had told the Board that her lawyer received the Director’ Decision on 24 May 2018. The Board did not accept her evidence because she did not give details as to who the lawyer was. However, in section 5 of the NOA, she put down that her lawyer pointed out that 7 June 2018 was the deadline. The Board did not accept the evidence.

e. Subjecting the Board to high standards of fairness, I find that the Board had obviously not discharged its duty of investigation into the matter. It had not made enquiry with the Duty Lawyer Scheme as to the identity of the lawyer, who had represented the applicant at the screening before the immigration officer, who might give further details as to the date of receipt of the Director’s Decision.

f. It is possible that the Director’s Decision was not sent on the day it was prepared, i.e. 17 May 2018. If the Director’s Decision was received by the applicant’s solicitor on 24 May 2018, the applicant was within time to file her NOA. It is therefore unsafe for the Board to hold that she was out of time.

g. Furthermore, where the Board refused to extend time for the applicant to file her NOA, it is tantamount to dismissing her appeal.

h. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held that in an application for filing NOA out of time, it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor. [20]

i. The Board had not considered the merits of the applicant’s case.

CONCLUSION

19.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant shall, within 14 days from the date of this order, take out the application in accordance with Order 53, rule 5 of the RHC.

Dated the 10^th day of August 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 10/8/2020 Cenas Febyen Celes Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Respondent’s ref. no.: USM 11905/18/6/84/F746 Director of Immigration 2^nd Respondent’s ref. no.: RBCZ 11621/17 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

Cites 1 case

Cases cited in this judgment

Other Judgments in This Case

Further hearings and rulings under HCAL 2576/2018

Cenas Febyen Celes v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

High Court CFI12 Jun 2019