Samson Clifard Alias Sharfraz Ahmed v. Torture Claims Appeal Board

HCAL 291/2019

[2021] HKCFI 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 291 of 2019

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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for Judicial Review be granted.

Observations for the Applicant:

1.A person who claims non-refoulement protection in Hong Kong on the ground of a torture risk must provide to the Director of Immigration (“Director”) all the necessary information relevant to the claim promptly and with full disclosure of all material facts in support of the claim, as required by Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”), starting with Section 37ZA which sets out the following duties of the claimant:

“(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must –

(a) provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;

(b) comply with every requirement, procedure and condition (including any time limit) –

(i) prescribed by this Part; or

(ii) required or specified by any person under this Part.

(2) A claimant must provide to the Director and (on an appeal) to the Appeal Board –

(a) the claimant’s residential address in Hong Kong; and

(b) the claimant’s correspondence address in Hong Kong (if different from the residential address),

and must notify the Director and (on an appeal) the Appeal Board in writing of any change in either of those addresses as soon as practicable after the change.”

2.One of the most important documents which a claimant is required to submit to the Director in support of the claim is the Torture Claim Form (“TCF”), or the Non-Refoulement Claim Form (“NCF”) for screening non-refoulement claimants on all applicable grounds under the Unified Screening Mechanism (“USM”) since March 2014, of which Section 37Y of the Ordinance provides as follows:

“(1) A claimant must, on written request by an immigration officer –

(a) complete a torture claim form, and the completed form must –

(i) state the grounds of the claim and the facts supporting the claim; and

(ii) include such other information as is required by the form, and

(b) return the torture claim form so completed to an immigration officer at an address specified in the form, together with all documents supporting the claim that are readily available to the claimant when the form is returned.

(2) The claimant must return the completed torture claim form in accordance with subsection (1)(b) –

(a) within the period of 28 days after a written request under subsection (1) is given to the claimant; or

(b) within any further period that an immigration officer allows under subsection (3).

(3) An immigration officer may –

(a) on an application made by a claimant in writing before the expiry of a period for returning a completed torture claim form in respect of the claimant’s torture claim; and

(b) on being satisfied that, by reason of special circumstances, it would be unjust not to allow a further period for the claimant to return the completed form,

allow a further period that the immigration officer considers appropriate for the claimant to return the completed form.

(4) The torture claim form is to be in a form specified by the Director.”   

3.In the event that a claimant fails to return a completed TCF or NCF as so required, the claim must be treated as withdrawn, but may be re-opened under certain conditions being complied with to the satisfaction of an immigration officer, as Section 37ZG of the Ordinance provides as follows:

“(1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2) An immigration officer must give the person who made the claim a written notice stating that –

(a) the torture claim is treated as withdrawn under subsection (1); and

(b) the person may apply to re-open the claim under subsection (3).

(3) A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required under section 37Y(2).

(4) If an immigration officer decides to re-open a person’s torture claim under subsection (3), the immigration officer must, by written notice, inform the person –

(a) of the decision; and

(b) that the person is required to return a completed torture claim in respect of the claim to an immigration officer at an address specified in the form within 14 days after the notice is given.

(5) If an immigration officer decides not to re-open the person’s torture claim, the immigration officer must, by written notice, inform the person of –

(a) the decision;

(b) the reasons for the decision; and

(c) the person’s right undersection 37ZR to appeal against the decision.

(6) If a torture claim is re-opened under subsection (3), subject to subsection (7) and (8), processing of the claim is to continue in accordance with this Part as if the claim had not been withdrawn.

(7) Section37Y(2) applies to the torture claim as if for paragraph (a) of the section there were substituted –

“(a) within the period of 14 days after the notice under section 37ZG(4) is given to the claimant; or”.

(8) If a completed torture claim form in respect of the torture claim is not returned in accordance with section 37Y(2) as read with subsection (7), the claim is to be treated as withdrawn under subsection (1) –

(a) on the expiry of the 14-day period; or

(b) if a further period is allowed under section 37Y(3), on the expiry of the further period.”   

4.In the present case, the Applicant is a 47-year-old national of India who in 2007 first raised a torture claim with the Immigration Department, which was subsequently rejected on 24 October 2012.

5.By a written representation dated 27 January 2013, the Applicant while being detained at the Castle Peak Bay Immigration Centre (“CIC”) sought non-refoulement protection on the ground of not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3 Risk”), and which was taken to be a non-refoulement claim upon the commencement of USM.

6.To commence the screening procedure under USM for the Applicant’s claim, the Immigration Department on 14 November 2016 held a briefing session with the Applicant with the assistance of an interpreter, and served on him a Notice to Persons Making Non-refoulement Claim (“Notice”) and a Supplementary Claim Form (“SCF”), the equivalence of a NCF but for used by a claimant who has earlier made a torture claim, but of which the Applicant refused to acknowledge its receipt after indicating he fully understood all the contents of the documents provided to him at the briefing session, including the requirement for him to return his completed SCF on or before 12 December 2016, as well as information regarding legal representation from the Duty Lawyer Service (“DLS”).

7.On 18 November 2016 DLS informed the Director that the Applicant had declined their assistance.

8.On 24 November 2016 the Director sent a further set of the Notice and SCF to the Applicant in CIC and reminded him to return his completed SCF by 12 December 2016, but which the Applicant refused to receive, and on 2 December 2016 he was released from CIC on recognizance.

9.As no SCF had been returned by the Applicant within the required period, the Director by a written notice dated 22 December 2016 and served on the Applicant when he reported on his recognizance informing him that his non-refoulement claim was treated as withdrawn, and of which the Applicant acknowledged on 13 April 2017.

10.On 26 April 2017 the Applicant requested to re-open his claim while being detained at CIC again, and on 5 May 2017 he explained in writing that he never received the SCF while being detained at CIC prior to his release on recognizance on 2 December 2016, and subsequently he was arrested by police for some offence for which he was imprisoned from 16 January 2017 to 6 April 2017, and upon his discharge from prison he was then transferred to CIC where he has since been detained, hence he never received any correspondence from the Immigration Department until 26 April 2017 when he requested to re-open his claim.     

11.By a Notice of Decision dated 29 May 2017 the Director refused the Applicant’s request to re-open his claim upon finding that he had been fully aware of the importance and requirement to return his completed SCF during his briefing session by an immigration officer at CIC, and that it was not satisfied that he had provided any sufficient evidence that he had been unable to do so due to circumstances beyond his control despite being detained either in prison or at CIC.

12.On 9 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was then filed after the expiry of the 14-day period required by Section 37ZS(1) of the Ordinance, the Applicant in Section 5 of his Notice of Appeal made an application for late filing with the following statement of reasons:

“I am detained in CIC Immigration Detention Centre Hospital for one year since 6.4.2017 until now, and I was confused and don’t know what to do and how, that’s why it take late to filing the notice of appeal.”

13.It would be relevant to also note that in Section 2(B) of his Notice of Appeal the Applicant stated his grounds of appeal as follows:

“My non-refoulement claim was not re-open by R.A. Section. My claim is true, so I appeal against the Decision for not re-open my non-refoulement claim. I request to consider my appeal very sympathetically, because I am detained for one year in hospital since 6.4.2017 with no reason in C.I.C. Imm-D, and request for re-open non-refoulement claim.

Grounds:-

(1) During my stay in C.I.C. until my release on 2 Dec 2016, I was not bring to visit room for briefing section.

(2) I have not meet any interpreter and Duty lawyer until I stayed in C.I.C. Hospital (2 Dec 2016).

(3) I never received any Supplementary Claim Form (“SCF”).

(4) No one informed me until 6-4-2017 that my non-refoulement claim is treated as deemed withdrawal.”

14.Pursuant to 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 decision dated 22 November 2018 it refused to allow the late filing of the Notice of Appeal.

15.In its decision the Board found the Applicant to have been about 10 months late with his Notice of Appeal, and refused to accept his explanations for the following reasons:

“24. Despite express provisions in section 5 of the NOA, the Petitioner has not provided any documentary proof like medical certificate proving that he had any health problem that had prevented him from filing the petition within the statutory time limit. Further, during the period of his detention at CIC shortly before the Corrigendum Decision was made, he was able to provide two written submissions to the Department applying to re-open his claim. He had failed to file his petition within the statutory time limit after he had been notified of the Corrigendum Decision shortly afterwards.

25. It is incumbent on the Petitioner to adhere to the time for the filing of the NOA and to provide plausible evidence in support of his purported reason for his failure to adhere to the time for filing of the NOA. Considering all the circumstances, I find that the Petitioner has failed to provide any convincing evidence, documentary or otherwise, in support of his alleged reason for his failure to file the NOA in time.

26. For the above reasons, the Petitioner has not shown any special circumstances to justify the late filing of the NOA under Section 37ZT of the Ordinance and paragraph 9 of the Petition Guide, and I do not consider that it would be unjust not to allow the late filing of the NOA.”   

16.On 31 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form as well as his supporting affirmation of the same date he stated that both the Director and the Board were wrong to ignore the fact that he had been detained at CIC at all the material time when he was unable to return his completed SCF and to file his notice of appeal within the required periods and hence the Board’s decision in refusing to accept the late filing of his Notice of Appeal is unjust and unfair.

17.Before his application was dealt with by the court, the Applicant on 13 May 2020 wrote to request to “stop/close” his application, and on 21 May 2020 I acceded to his request and directed that his application be withdrawn.

18.However, on 10 February 2021 the Applicant issued a summons to apply to “re-open” his application as he claimed that his life would still be in danger in his home country. Given the fact that his substantive application has never been formally determined, and in order to save time and resources, I allowed his request and re-instated his application for a hearing which was attended by the Applicant, and proceed to determine whether there is any merits in his complaint that it was indeed unjust for the Board not to allow the late filing of his Notice of Appeal.

19.As noted in its decision, the Board applied the relevant subsections (2) and (3) of Section 37ZT of the Ordinance in its determination whether to allow the late filing of the Applicant’s Notice of Appeal, which stipulate that the Board should take account of (a) the statement of reasons stated in the application for late filing of the notice of appeal, which it did, and any accompanying documentary evidence in support, which was none, and (b) any other relevant matters of fact within the knowledge of the Board, which must include the grounds stated by the Applicant in Section 2(B) of the Grounds of Appeal/Petition of his Notice of Appeal and set out in [15] of the Board’s decision, and henceforth the merits of his appeal, so as to be satisfied whether by reason of any special circumstances that it would be unjust not to allow the late filing of the notice of appeal, but which the Board did not appear to have done so when it refused to allow the late filing of the Applicant’s Notice of Appeal.

20.As it has been held by the Court of Appeal in Qasim Ali [2019] HKCA 430 that the merits of the appeal should be taken into account, as Hon Lisa Wong J explained in giving the judgment of the Court as follows:

“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.”  

21.In the premises, and for the reasons given, it seems to me reasonably arguable that the Board had similarly in the present case failed to take account of the merits of the Applicant’s appeal in its decision in refusing to allow the late filing of his Notice of Appeal, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.     

22.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the basis as stated above, and pursuant to Order 53 rule 5 of the Rules of the High Court, Cap 4A, the Applicant is directed to file an originating summons within 14 days of this decision, and shall serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 18^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