Masih Sunil Alias Sunil Arif v. Torture Claims Appeal Board

HCAL 1064/2018

[2021] HKCFI 1296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1064 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 28 December 2017 granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.The Applicant is a national of Pakistan who has raised a non-refoulement claim with the Immigration Department, and was on 5 January 2016 given a guide called Notice to Persons Making a Non-refoulement Claim (“Notice”) together with a Non-refoulement Claim Form (“NCF”) for him to complete and return to the Department by 23 February 2016. On the same occasion the Applicant also accepted legal assistance from the Duty Lawyer Service (“DLS”) for his claim.

2.The deadline for the Applicant to return the completed NCF was later extended to 19 April 2016 at the request of DLS, but on 18 April 2016 DLS informed the Immigration Department that they had no further instruction to represent the Applicant.

3.As the Applicant failed to return the NCF by 19 April 2016, the Immigration Department on 3 May 2016 in writing informed him that his claim had been treated as withdrawn pursuant to section 37ZG(1) of the Immigration Ordinance, Cap 115 (“Ordinance”).

4.On 11 May 2016 the Applicant wrote to the Immigration Department to request to re-open his claim as follows:

“I was not in good mind and not happy coz lot of problem. I hope your good office will going to understand my situation. My case worker visit me in prison the first time on 11 Mar 2016. Then I was told my case officer that at this time I am not in my good mood when I will out. Then I have to contact my case worker. Then again my case worker visit me in Hei Ling Chau on 11 Apr 2016. Then I told the same reason . Then third time my case worker visit me on the date of 15 Apr 2016. Then I told to him I want to talk my lawyer fist.”

5.On 18 May 2016 the Immigration Department in reply required the Applicant, pursuant to section 37ZG(3) of the Ordinance, to provide sufficient evidence in writing on or before 1 June 2016 to satisfy an immigration officer that he had not been able to return the completed NCF within the required period due to circumstances beyond his control.

6.On 25 May 2016 the Applicant replied in writing as follows:

“I April 2016 I make a phoon call overseas to Pakistan to my family I talk to my father from Hei Ling Chau Prison. I come to know that my mother was sick. She has folige attack. When I come to know about my mother I was unhappy and thinking much about my mother when the officer come to visit me I told that I have my family problems I can’t answer you. I made a phoon request to call my family bcoz I want that if mother is ok or no. I am still not sure if mother still in the same situation, my request for phoon call was not proved coz only can call every 2 month and that will be on 1 June 2016.”

7.On 30 May 2016 the Applicant wrote again to say that he had been granted bail by the High Court and that the hearing date for his case would be on 15 August 2016, and that he was ready to provide his answer required by the Department if his case was to be re-opened.

8.On 2 June 2016 the DLS requested the Immigration Department to withhold the decision as they were making arrangement to interview the Applicant, but 2 weeks later on 16 June 2016 the DLS informed the Immigration Department that they had no further instruction to represent the Applicant in his request to re-open his claim.      

9.By a Notice of Decision dated 15 July 2016 the Director of Immigration (“Director”) informed the Applicant that his request to re-open his claim had been refused due to his failure to provide sufficient evidence to satisfy an immigration officer that due to circumstances beyond his control that he had not been able to return his completed NCF within the time required.

10.On 15 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision with numerous additional pages of grounds and information regarding his claim.

11.On 28 December 2017 a Mr Johnny Wong for the Board in writing informed the Applicant that his Notice of Appeal was to be treated as a nullity as it was not accompanied by a copy of the notice of the decision being appealed against as required by Section 37ZS(2) of the Immigration Ordinance, Cap 115 and Section 8.3 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (“Petition Guide”).

12.On 23 April 2018 the Applicant wrote to the Board claiming to have been detained at the Castle Peak Bay Immigration Centre (“CIC”) and requested for assistance in obtaining a copy of the Director’s decision in order that he may comply with the Section 37ZS(2) requirement.

13.On 25 April 2018 the same Mr Johnny Wong replied for the Board that the Applicant’s request for a copy of the Director’s decision had been referred to the Immigration Department for follow-up action.     

14.It is not clear whether the Immigration Department had followed up with the Applicant’s request, but on 11 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he essentially claimed to have been detained by the Immigration Department and the police and hence unable to provide the evidence and information required for his non-refoulement claim.

15.By then the Applicant was out of time with his leave 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.

16.As the last day of the three-month period for him to file his Form 86 fell on 28 March 2018, the Applicant was therefore 2 ½ months late with his application, 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 administrative: see AW v Director of Immigration [2016] 2 HKC 393.

17.In the Applicant’s case, a delay of 2 ½ months must be considered as substantial or significant, for which he explained in his supporting affirmation that he had been jailed in August 2017 for 24 months during which he was unable to make his appeal to the Board properly or to file his Form 86 within time due the constraints of being in custody.   

18.While it is accepted that being detained by the police or the Immigration Department may cause certain delays and inconveniences in complying with requirements regarding one’s non-refoulement claim, and in the Applicant’s case it seems that he had indeed been so detained at one time or the other, they are not per se reasonably arguable grounds for judicial review of the decisions of the Director or the Board, especially when he had been given legal representation from DLS twice in his process before the Director, nor for that matter to bring his leave application promptly.

19.However, as for the merits of his intended application, given the serious implications of the Board’s decision on the Applicant’s claim, high standards of fairness require that the decision be considered by the court with rigorous scrutiny for any error of law, procedural unfairness or irrationality.

20.Firstly, it would be relevant to be reminded that under Part VIIC of the Immigration Ordinance, a person who has made a claim for non-refoulement protection with the Immigration Department, such claim is to be processed and assessed by an immigration officer of the Torture Claim Assessment Section of the Department on behalf of the Director, which is essentially an administrative arrangement for the screening of such claims as the first tier determination of a two-tier enhanced screening process.

21.Should the claim be rejected by an immigration officer, the claimant is entitled to proceed to the second tier of the screening process which, in the past, was to petition to the Chief Executive under Article 48 of the Basic Law, with the duty of determining the petition to be performed by Adjudicators appointed by the Chief Executive under an Instrument of Delegation, but with the coming into operation of the Immigration (Amendment) Ordinance on 3 December 2012 which creates a statutory framework for determining such claims and includes the establishment of the Appeal Board to hear appeals against refusal decisions on claims by immigration officers, the Adjudicators are to be members of the Board as Co-Chairmen who have been in their personal capacity delegated with the powers under Article 48 of the Basic Law as before to hear and determine appeals in relation to non-refoulement claims made on all applicable grounds.

22.Secondly, as noted above, Section 37ZS of the Ordinance provides that such appeals must be filed with the Board within 14 days after notice of the decision of an immigration officer is given to the claimant, and that the notice of appeal must be in a form specified by the Chairperson of the Board, and must be accompanied by a copy of the decision being appealed against, a requirement with which the Applicant in the present case was said to have failed to complied.

23.In the event of the notice of appeal being filed after the expiry of the 14-day period referred to in Section 37ZS above, Section 37ZT provides that it must include a statement of reasons for failing to file the notice within that period and must be accompanied by any documentary evidence in support of the reasons, and that the Board must decide as a preliminary decision whether to allow its late filing by taking account into the reasons for the late filing and other relevant matters of facts within the knowledge of the Board that whether by reason of special circumstances it would be unjust not to allow the late filing of the notice of appeal.  

24.Henceforth, it is clear that whether a person has failed to comply with any of the requirements stated above, and whether such a failure would render the notice of appeal to be treated as a nullity must be within the jurisdiction and province of only the Chairman or Co-Chairman of the Board as the Adjudicator, and that whether to allow the appeal to be heard notwithstanding such failure or default must also be within the sole discretion of the Adjudicator.

25.In the Applicant’s case, there is nothing to suggest that the person who wrote on 28 December 2017 for the Board to inform the Applicant that his notice of appeal was to be treated as a nullity was an Adjudicator or someone with the authority to make such a decision under the relevant sections of the Ordinance regarding the Applicant’s notice of appeal submitted without the Director’s decision. As such it seems to me reasonably arguable that the Board erred in law to allow someone other than an Adjudicator to treat the Applicant’s notice of appeal as a nullity.

26.Furthermore, even if it were indeed a decision made by someone in the capacity of a Chairman or Co-Chairman of the Board and therefore an Adjudicator with the delegated power to do so, and there is as noted no evidence to suggest that it was, given the fact that the Applicant was then in custody and had written to ask for help to obtain a copy of the decision so as to comply with the requirement, it seems to me reasonably arguable that the Board failed to apply high standards of fairness in refusing to exercise its discretion in favour of the Applicant to allow him to file his notice of appeal without a copy of the Director’s decision which could easily be produced at a later date either by the Applicant or from the Director.

27.In the premises and for the reasons given, I am of the view that the intended application for judicial review of the Board’s decision is reasonably arguable, having met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

28.Accordingly, I extend time to the Applicant’s late application, and grant leave to him to apply for judicial review of the Board’s decision on the basis stated above, and in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, that he shall file an originating summons within 14 days of this decision 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 7^th day of May 2021.

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