J v. Torture Claims Appeal Board and Another

HCAL 385/2019

[2020] HKCFI 2526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 385 OF 2019

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 C P Pang:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non refoulement Claims Petition Office (“the Board”) refusing to allow late filing of the Notice of Appeal against the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim of non-refoulement protection.

2.The facts of the case and the basis for the Applicant’s non-refoulement claim can be briefly stated. The Applicant is a national of Gambia. In January 2013, the Applicant acted as a middleman in the sale of a piece of land.  After he obtained a part-payment from the purchaser and passed it to the owner’s representative, the land was however sold to somebody else.  As he failed to secure the land for the purchaser, the purchaser and his brother threatened to kill him if he did not return the money or the land.  On 21 September 2014, the Applicant in fear of his safety left Gambia for Senegal which is adjacent to Gambia.  On 23 September 2014, the Applicant left Senegal and arrived in Guangzhou, China on the next day.  On 30 September 2014, the Applicant lawfully entered Hong Kong on the strength of his Gambian passport.  He was granted permission to stay for 3 months as a visitor.  He did not leave Hong Kong when his permission to stay expired on 29 December 2014.  On 2 January 2015, the Applicant surrendered to the Immigration Department.

Non-refoulement Claim

3.By a written representation dated 13 February 2015, the Applicant lodged with the Director of Immigration a non-refoulement claim.

4.The Director subsequently referred the Applicant to Pilot Scheme Office for Provision of Public-funded Legal Assistance for Non-refoulement Claimants (“PSO”) so that legal assistance would be provided to the Applicant.  PSO assigned a lawyer to the Applicant (“the PSO Lawyer”).

5.On 28 March 2018, the Applicant, accompanied by the PSO Lawyer, attended a screening interview with the Immigration Department in respect of his non-refoulement claim.

The Director’s Decision

6.By a ‘Notice of Decision’ dated 3 April 2018, the Director rejected the Applicant’s non-refoulement claim (“the Director’s Decision”).  It is unnecessary to state the detailed reasons for the purpose of this application, suffice it to say that the Director found the level of risk of harm faced by the Applicant was low.  The Director’s Decision was sent to the PSO lawyer by registered post.

7.On 13 April 2018, the Applicant attended a conference with the PSO Lawyer and was given a copy of the Director’s Decision.

Appeal/ Petition to the Board

8.On 25 April 2018, the Applicant, acting in person, submitted his completed Notice of Appeal/ Petition (“the Notice of Appeal”) to the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Appeal”).

9.Section 5 of the Notice of Appeal concerns application for late filing of the Notice of Appeal. Under that section, the Applicant stated that: -

“I receive it on the 13^th April 2018”

10.By a letter dated 16 November 2018, the Broad requested the Director ‘to provide information about the date and manner of service of the Notice of Decision dated 28 March 2018 on [the Applicant’s] legal representative’ (exhibit J-25 of the 3rd affirmation (“the affirmation”) of the Applicant). Pausing here, it is to be noted that the Director’s Notice of Decision should be dated 3 April 2018.

11.By a letter dated 20 November 2018, the Director replied to the Board stating that the “[Director’s] Notice of Decision dated 3 April 2018 was delivered to [the Applicant] via registered post to [the PSO Lawyer] on the same day…” (exhibit J-26 of the affirmation).

The Board’s decision

12.By a Decision dated 21 January 2019, the Board without a hearing refused the Applicant’s application for “late filing of the Notice of Appeal” (“the Board’s Decision”). The presiding adjudicator of the Board was Mr WONG Chun-kong (“the Adjudicator”).

13.For the purpose of the present application, I will adopt the Adjudicator’s reasons for refusal as summarized in the amended Form 86 prepared by solicitors, assigned by the Director of Legal Aid, now acting for the Applicant:-

“The Adjudicator’s reasons for refusal may be summarized as follows:-

35.1. The Applicant applied for late filing of the Notice of Appeal (dated 25 April 2018), which was received by the Board on the same day, against the Director’s Decision (dated 3 April 2018), which was contained in the letter dated 3 April 2018 addressed to the Applicant, care of the PSO Lawyer;

35.2 The Notice of Appeal was served by registered post on the PSO Lawyer on 3 April 2018;

35.3 The regime governing late filing was strict. The Applicant had a duty to comply with the time limit. If he failed, ‘it matters not whether the delay is for a few days (like the case here) or whether it is much longer’. He was required to establish special circumstances which would make unjust a refusal to allow late filing;

35.4 The Board must consider and decide, as a preliminary decision without a hearing, the application for late filing of the Notice of Appeal. The Applicant, however, did not provide any documentary evidence;

35.5 Given the Director’s Decision ‘was dated and served on [the PSO Lawyer] by registered post on 3 April 2018’, the deadline for filing the Notice of Appeal should fall on 20 April 2018. The Notice of Appeal was dated and filed on 25 April 2018. It was late for 5 days;

35.6 The Applicant stated in the Notice of Appeal that he had received it on 13 April 2018. As such, he was purportedly given actual notice of the Director’s Decision on 13 April 2018 and ‘it took him 12 days to have the Notice of Appeal prepared and filed with [the Board]’;

35.7 The Applicant appeared to allege that there had been delay on the part of the PSO Lawyer. Even ignoring the alleged 10-day delay, the Board still had to consider whether or not the action taken by the Applicant since his actual receipt of the Director’s Decision amounted to special circumstances which would make unjust a refusal to allow late filing;

35.8 Other than the allegation that he was given the Director’s Decision on 13 April 2018, the Applicant provided no explanation as to why he took another 12 days to have the Notice of Appeal prepared and filed with the Board;

35.9 The fact that the Applicant completed Section 5 of the Notice of Appeal clearly indicated that he realized that he was late. An explanation by him was important. He provided no information or explanation as to what he did after he had actual notice of the Director’s Decision;

35.10. The non-refoulement claim must have been a very serious and important matter for the Applicant. He would have been cautious and ought to have ensured that the Notice of Appeal ‘was prepared and filed at the very first opportunity upon receipt of the same and provided information/ explanations’;

35.11 There was unjustified delay on the part of the Applicant after receipt of the Director’ Decision in preparing and filing the Notice of Appeal; and

35.12  The Applicant had failed to provide sufficient information or explanation and documentary evidence to enable the Board to find that there were special circumstances which would make unjust a refusal to allow late filing of the Notice of Appeal.”

Application for leave to apply for judicial review

14.The Applicant, then acting in person, filed his Form 86 on 11 February 2019 to seek leave to apply for judicial review against the decision of the Board.  He was subsequently granted legal aid.  With leave of the court, the Form 86 was amended.  The grounds set out in the amended Form 86 can be summarized as follows.

Ground 1: “Illegality: Error of Fact/ Error of Law/ Misdirection in Law”

15.The complaint in this ground is that the Board’s Decision is liable to be quashed because the Adjudicator erred in counting the appeal period and hence the deadline for filing the Notice of Appeal.  The information given by the Director of Immigration in his letter dated 20 November 2018 that the Director’s Decision was delivered to the PSO lawyer on 3 April 2018 is wrong.  The Director’s Decision was only served on the PSO lawyer on 11 April 2018 by registered post.  The 14-day appeal period only started to run on 11 April 2018.  The Applicant was not late in filing the Notice of Appeal on 25 April 2018 as a matter of law.

Ground 2: “Procedural Irregularity/ Error of Law/ Misdirection in Law”

16.It is also the Applicant’s case that the Board’s Decision is liable to be quashed because the Adjudicator erred in the following: -

(1)     As a matter of procedural fairness, the Adjudicator, when determining the date of the deadline, erred in refusing or failing to make sufficient inquiry in respect of when the Applicant or the PSO Lawyer received the Director’s Decision and the Notice of Appeal;

(2)     The Adjudicator erred in considering that length of delay as immaterial;

(3)     The Adjudicator erred in interpreting section 37ZT of the Ordinance when he considered the alleged late filing of the Notice of Appeal; and

(4)     As a result, the Adjudicator erred in failing or refusing to conduct an oral hearing in respect of the alleged late filing of the Notice of Appeal.

17.For these reasons, the Applicant seeks remedies for, inter alia, an order of certiorari to bring up and quash the Decision dated 21 January 2019 of the Board.

Discussion

18.The Applicant only asks for an oral hearing if leave to apply for judicial review is not granted on paper.  As I am minded to grant leave, the application is determined on the papers without a hearing.

19.Bearing in mind the court is only considering at this stage whether leave should be granted for the Applicant to apply for judicial review, I will only give brief reasons for granting leave.

20.There are two main issues in the present application.  First, whether the Notice of Appeal against the Director’s Decision was filed with the Board within the statutory time limit of 14 days after the Director’s Notice of Decision was given to him (see s 37ZS(1) of Immigration Ordinance).  If so, the Applicant could as of right appeal that decision.  Secondly, if the Notice of Appeal was filed out of time, whether the Board’s refusal to allow late filing of the Notice of Appeal was unreasonable.

21.The Adjudicator found that the Notice of Appeal (dated and filed with the Board on 25 April 2018) was filed “late for 5 days” as he observed that the notice of decision of the Director was served on the legal representative of the Applicant by registered post on 3 April 2018. It appears that his computation of time was based on information given by the Director that the Director’s Decision was delivered to the Applicant via registered post on 3 April 2018 (exhibit J-26 of the 3^rd affirmation of the Applicant).  On that basis, the Adjudicator considered that the last day for the Notice of Appeal to be filed should be no later than 20 April 2018, presumably applying the statutory presumption of time for service by post stated in s 37ZV (3) of the Immigration Ordinance.

22.There are now documents exhibited in the 3^rd affirmation of the Applicant showing on its face that the Director’s Notice of Decision was only sent by the Director by registered post on 9 April 2018 and was received by the Applicant’s legal representative on 11 April 2018 (see exhibits, in particular, J-16 to J-19 of the 3^rd affirmation of the Applicant).  On the evidence produced, it is reasonably arguable that the Director’s Decision was given to the Applicant on 11 April 2018 and hence the deadline for filing of the Notice of Appeal fell on 25 April 2018.  As the Notice of Appeal was filed on 25 April 2018, there was no late filing.

23.Even assuming that the Notice of Appeal was indeed filed 5 days late, the delay could not be said to be substantial or excessive.  Length of delay was a relevant factor to be taken into account when the Adjudicator considered whether or not special circumstances existed that it would be unjust not to allow the late filing of the Notice of Appeal: s 37ZT(3).  In the present case, the short delay should be a weighty factor in favour of the Applicant.  With such a short delay and when the Applicant stated in the Notice of Appeal that he only received the Director’s Notice of Decision on 13 April 2018, it is arguable that the Adjudicator should have made more inquiries about the reason for the delay to consider whether special circumstances existed in his case to justify late filing.  If there was no fault whatsoever on the part of the Applicant, he should not be penalized.  Furthermore, the Adjudicator’s decision did not demonstrate that he took into account the merit of the Applicant’s claim.  He emphasized in his decision that “The regime governing late filing is strict…it matters not whether the delay is for a few days (like the case here) or whether it is much longer…”.  In my view, in the special circumstances of the case, it is also arguable that a reasonable decision maker would have considered the merit of the Applicant’s claim as well.  Therefore, even if the Notice of Appeal was filed 5 days late, it is reasonably arguable that the Adjudicator’s refusal to allow late filing was Wednesbury unreasonable.

Conclusion

24.For the reasons given, the two grounds of review are both reasonably arguable.  The threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung [2007] 10 HKCFAR 676 has been met.

25.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision based on the grounds relied upon by the Applicant in the amended Form 86, and direct that he shall file an originating summons within 14 days, and to serve a copy with all the relevant documents on the Board as respondent and the Director as interested party.

Dated 8 October 2020

The Applicant is represented by Messrs KCL & Partners

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