La Torre Ramon Jr Delos Reyes v. Torture Claims Appeal Board

HCAL 519/2018

[2020] HKCFI 2239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 519 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.  extension of time for the application for leave to apply for Judicial Review of the decisions of Torture Claims Appeal Board dated 20 December 2016 and 8 November 2017 respectively granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.The Applicant is a 44-year-old national of the Philippines who arrived in Hong Kong on 8 May 2013 with permission to work as a foreign domestic helper until the expiration of his employment contract on 8 May 2015 or within 14 days of its early termination, but when his contract was prematurely terminated on 22 August 2014, he did not depart and instead overstayed, and on 17 October 2014 he was arrested by police for theft for which he was convicted and sentenced to prison for 6 months, during which he raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by the terrorist group New People’s Army (“NPA”) for quitting the group.

2.The Applicant was born and raised in Sampaloc, Manila, the Philippines.  After leaving school he worked as a waiter and then in the transportation business, and in 2010 he joined the NPA, but later when he found that the group was not what it claimed to be and wanted to leave the group, he was threatened by the group leader that he would be killed, but in December 2012 he seized an opportunity to make his escape for his home town in Manila, but as he still felt it was not safe to remain in the Philippines, he therefore applied to work as a foreign domestic helper in Hong Kong, for which he departed on 8 May 2013, but when his employment contract was terminated in August 2014, he overstayed and subsequently upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 11 February 2015 and attended screening interview before the Immigration Department.

3.While being released on recognizance pending determination of his claim, the Applicant was arrested by police on two separate occasions in 2015 respectively for possession of illegal drugs and theft for which he was convicted and sentenced to prison for 4 months and 2 months separately.     

4.By a Notice of Decision dated 24 June 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those NPA people upon his return to the Philippines as low due to the absence 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 the Philippines with a large population of 92 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the Philippines away from his home district in other large cities where it would be difficult if not impossible for those NPA people to locate him.

6.On 25 July 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but as his Notice of Appeal was then filed outside the 14-day period within which he was required to do by section 37ZS of the Immigration Ordinance (“the Ordinance”), and in which he provided a statement of the reasons for his delay, which was essentially that he did not receive the Director’s decision in the mail and was only given a copy on 18 July 2016 while being detained at the Castle Peak Bay Immigration Centre (“CIC”) when by then he was already out of time to file his appeal.

7.It would be relevant to note that in his Notice of Appeal, the Applicant also provided his grounds of appeal totaling of 17 pages.

8.In pursuance of section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a Notice of Decision dated 20 December 2016 (“First Decision”), the Board refused the late filing of the Applicant’s Notice of Appeal upon finding that he had been late for 2 weeks which was a serious failure to comply with the rules and for which he had no good reason for the breach ([22]).

9.On 17 February 2017 the Director on his own initiative invited the Applicant to submit additional facts which may be relevant to his claim on all applicable grounds including risk to his absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 29 March 2017 again rejected his claim on all applicable grounds for non-refoulement protection including BOR 2 risk.

10.On 5 July 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, but again he was outside of the 14-day period required to file his Notice of Appeal, of which the Board found to have been late by 2 ½ months, and again as a preliminary decision without a hearing it proceeded to consider whether to allow the late filing of his Notice of Appeal, and by a Notice of Decision dated 8 November 2017 (“Second Decision”) it refused the Applicant’s late filing of his Notice of Appeal.

11.In this decision the Board again found the Applicant’s delay of 2 ½ months a serious and significant failure to comply with the rules, and that there were no special circumstances which might make it unjust not to allow the late filing of his Notice of Appeal ([16] – [19]).   

12.On 29 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and of the Board, and in his supporting affidavit of the same date he complained that the Director and the Board had failed to consider all the matters raised in his claim but without providing any particulars or elaborations as to how it was so.

13.By then he was also late with his application, 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.

14.As the last day of the three-month period for him to file his Form 86 against the Board’s Second Decision fell on 8 February 2018, the Applicant was therefore 7 weeks late with his application, not to mention the more serious delay of more than 12 months regarding the Board’s earlier First Decision of 20 December 2016, and 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: AW v Director of Immigration [2016] 2 HKC 393. 

15.In the Applicant’s case, a delay of whether 7 weeks or 12 months must be considered as serious, for which he did not appear to have provided any explanation in his supporting affidavit, other than the fact that he stated in his Form 86 that he was then being detained at CIC, and with the various associated restrictions and inconvenience to legal assistance as well as incoming and outgoing mails which may account for some delays but certainly not as serious as that for the Board’s First Decision.     

16.As for the merits, if any, of his intended application, as already noted above the Applicant did not elaborate as to how the Board failed to consider all the matters raised in his claim, but given the serious implications of the Board’s decisions in effect depriving him of the second stage of the two-tier enhanced screening of his claim, high standards of fairness require that those decisions be considered by the court with anxious scrutiny, of which I shall start by referring first to the statutory requirements which the Board is to undertake when dealing with the late filing of the Applicant’s Notice of Appeal under section 37ZT(2) & (3) of the Ordinance, which provides as follows:

“ (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 …” 

17.In the Applicant’s case, it seems to me reasonably arguable that in refusing to allow the late filing of both of the Applicant’s Notice of Appeal, and despite having directed itself to the 3-stage approach alluded to in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 (3 March 2016), the Board failed to evaluate the merits of either of his appeals with reference to any of those grounds set out in his Notices of Appeal which are clearly relevant matters of fact within the knowledge of the Board as stipulated by subsection (2) as noted above, and as held by the Court of Appeal in Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019, as 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.”

18.Furthermore, that the Board having in its First Decision accepted that the Applicant was then being detained in CIC and may have received the Director’s decision by the latest on 6 July 2016 with only 5 days until 11 July 2016 to submit his Notice of Appeal, but still proceeded to find in the circumstances that he would have no good reason for the breach (see [22] of Board’s First Decision), it is in my view reasonably arguable that such decision is Wednesbury unreasonable.         

19.In the premises and for the reasons given, I am of the view that the intended application for judicial review of both of the Board’s decisions is reasonably arguable, and accordingly extend time for the Applicant to file his Form 86, and grant leave for him to apply for judicial review of the Board’s two decisions on the basis mentioned above, and direct him to issue an originating summons under Order 53 rule 5 of the Rules of the High Court, Cap 4A within 14 days, 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 9^th day of September 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