Alam Aftab v. Torture Claims Appeal Board

HCAL 1197/2018

[2021] HKCFI 1708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1197 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 17 November 2015 granted; and

2.  leave to apply for Judicial Review of both the decisions of Torture Claims Appeal Board dated 17 November 2015and 7 June 2018respectivelygranted.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of India who arrived in Hong Kong on 6 April 2015, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his wife’s family for marrying her despite their objections.

2.The Applicant was born and raised as a Muslim in Kolkata, West Bengal, India. After leaving secondary school, he went on to attend university in 2013 when he first met his wife who was a Hindu, but due to their different religious faith their relationship was opposed by both families, especially his wife’s family when her father, a local police inspector, and her brother had made threats against the Applicant and demanded that he put an end to the relationship.

3.However, despite objections from both families, the Applicant and his wife decided to get married, which they did one day in January 2015 secretly in Kolkata with the help of some friends, but on the day after their marriage, his wife’s father with some men abducted the Applicant and took him to a jungle in Canning, and when he tried to run away, they shot at him with their guns but missed, and the Applicant managed to make his escape unharmed by hiding in the jungle until his wife’s father and his men had left.

4.As the Applicant was afraid to return to Kolkata, he therefore took shelter in a friend’s place in Mumbai, but as he heard that his wife’s father had sent men looking for him everywhere, and given his fear that his wife’s father as a police inspector would be able to get to him anywhere in India, the Applicant therefore on 5 April 2015 departed India for Hong Kong, and when he was refused entry by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 June 2015 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 31 July 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his wife’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private dispute between him and his wife’s family without 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 (“COI”) shows that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied and highly educated young man to move to other parts of India away from his home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for his wife’s family to locate him.

7.On 18 August 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was deemed to have been filed outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, the Board proceeded under Section 37ZT(2) to decide as a preliminary decision without a hearing whether to allow the late filing of his Notice of Appeal.

8.By a written notice dated 17 November 2015 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that he had been late by 4 days and that there were no extenuating circumstances which prevented him from filing his Notice of Appeal within time (“Board’s First Decision”).

9.Meanwhile on 25 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other 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 15 February 2017 rejected his BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated including right to life under BOR 2 Risk upon his return to India.

10.On 27 March 2017 the Applicant lodged an appeal to the Board against the Further Decision of the Director, and again his Notice of Appeal was deemed to have been filed out of time, and the Board therefore again proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of his Notice of Appeal.

11.By a written notice dated 7 June 2018 the Board again refused to allow the Applicant’s late filing of his Notice of Appeal which was found to have been late by 24 days, that it was an undue delay, and that the Applicant had failed to provide any explanation or reason why it would be unjust not to allow the late filing by reason of special circumstances (“Board’s Second Decision”).

12.On 25 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Second Decision of the Board, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he merely attached a copy of the decision without putting forward any proper ground for his intended challenge, nor did he request any hearing for his application.

13.Nevertheless, the Court shall adopt an enhanced standard in scrutinizing the decision of the Board in view of the seriousness of the issue at hand and which had the consequences of denying the Applicant of the second-tier screening process of his non-refoulement claim under the Unified Screening Mechanism (“USM”) in place since March 2014 for the screening of all non-refoulement claims.

14.Before proceeding to scrutinize the Board’s reasons for refusing to allow the late filing of the Applicant’s Notice of Appeal, it would be relevant to first remind myself of the relevant Section 37ZT of the Ordinance as follows:

“(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which –

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(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 reason 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 filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.”

15.In the Board’s Second Decision, the Adjudicator found that the Director’s Notice of Further Decision was served on the Applicant on 15 February 2017, and with the 14-day period expired on 3 March 2017, the Applicant was therefore late by 24 days with his Notice of Appeal ([4]).

16.The Adjudicator then made further findings in [8] as follows:

“I find that Section 5 of the Notice of Appeal/Petition had not been complied with in that:-

(i) The filing of the Notice of Appeal/ Petition is late for 24 days, it is mandatory that Section 5 has to be complied with.

(ii) Since Section 5 was left blank, the Petitioner had not stated any reason as to why I should exercise my discretion in favour of the Petitioner nor it would be unjust not to allow the late filing by reason of special circumstances.

(iii) A delay of 24 days in filing the Notice of Appeal/Petition in any event is undue delay and there was no basis for the Petition Office to exercise its discretion in favour of the Petitioner.”

17.In the absence of any statement of reasons provided by the Applicant in his Notice of Appeals for his late filing, the Adjudicator was of course entitled to find it an undue delay, but it seems that in arriving in his decision to refuse to allow its late filing, the Adjudicator had failed to take account of other relevant matters of fact within the knowledge of the Board referred to in Section 37ZT(2) of the Ordinance as noted above, of which the Court of Appeal has held in Re Qasim Ali, CACV 547/2019, [2019] HKCA 430, 8 April 2019, to include the merits of the appeal, as Lisa Wong J in giving judgment of the Court elaborated as follows:

“23. … 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.It is quite clear in the Board’s Second Decision the Adjudicator did not take account of the merits of the Applicant’s appeal which was essentially to challenge the Director’s rejection of his BOR 2 claim, the basis for which was however premised on the same set of facts relied on by the Applicant for his claim under torture risk, BOR 3 risk and persecution risk, but of which the Board also did not appear to have taken account either in its First Decision when it refused to allow the late filing of the Applicant’s earlier appeal against the first decision of the Director in rejecting his claim under those applicable grounds.

19.About this it is relevant to first note that the Director’s first decision dated 31 July 2015 was sent to DLS which represented the Applicant in the first-tier screening of his non-refoulement claim before the Immigration Department, and which I understand is the usual practice to just serve on DLS instead of the applicant himself, and according to his Notice of Appeal which he dated 13 August 2015, the Applicant was then being detained at the Castle Peak Bay Immigration Centre (“CIC”).

20.It was however only on 18 August 2015 that the Board received the Applicant’s Notice of Appeal in the mail, of which the Board stated in the First Decision at [2]:

“On 18 August 2015, the Petitioner filed the Notice of Appeal/Petition which was 4 days after the 14-day appeal period. The Petitioner left Section 5 (Application for Late Filing of Notice of Appeal/Petition) blank. In the circumstances, the requirement under paragraph 1 of the Notice of Appeal/Petition form in respect of late filing of Notice of Appeal/Petition had not been complied with. The appeal/petition ought to be dismissed.”

21.Apparently the Board did not there and then dismiss it, and it appears that the Notice of Appeal was somehow returned to the Applicant in CIC for him to complete Section 5 and to include his statement of reasons for his late filing as required under Section 37ZT(1) of the Ordinance, which the Applicant subsequently did, as noted in the Board’s First Decision:

“4. On 27 August 2015, 13 days after the expiry of the 14-day appeal period, the Petitioner completed Section 5 of the Notice of Appeal/Petition. Under Section 5, he stated “I write this statement to remind you that I lodged an appeal petition on time so there not late filing from me, maybe there is delay in your postal services that’s why I let you know that file the appeal on time, please approve my appeal and receiving. Thank you”. There was no relevant documentary evidence in support of his reasons.

22.The Board then proceeded to consider the Applicant’s stated reasons and refused to allow his late filing of his Notice of Appeal as follows:

“5. With respect to the Petitioner, the mere fact that at Section 6 he had written down the date as 13 August 2015 did not ipso facto mean that it was filed on that day. It only meant he completed Section 6 on that day.

6. If he alleged that there is delay in the postal services, it was just a bare allegation and is for him to prove.

7. The 14-day period as stated at paragraph 1 of the Notice of Appeal/Petition is mandatory as it is deemed sufficient time for anyone to complete the Notice of Appeal/Petition unless there are unforeseeable circumstances which are beyond the control of the Petition.

8. There were not any extenuating circumstances which prevented the Petitioner to file his Notice of Appeal/Petition in time.

9. For reasons above his application for leave to file the appeal/petition out of time is dismissed.”

23.Firstly, in refusing to allow the late filing of this Notice of Appeal of the Applicant, it is quite clear that the Board did not similarly take account of the merits of the appeal as held to be required by the Court of Appeal in Re Qasim Alias noted above, and for which the Applicant had in Section 2 of his Notice of Appeal put forward some 15 pages of his grounds of appeal against the Director’s decision but none of which had been referred to by the Adjudicator in his decision. That is, assuming that the Applicant’s Notice of Appeal had in fact been late in the first place, of which no doubt I will have more to say later.

24.Secondly, the fact is that at that time the Applicant was being detained in CIC where there would be expected various restrictions regarding incoming and outgoing mails for inmates and detainees as well as accessing to legal assistance, all of which are no doubt relevant matters of facts within the knowledge of the Board to be taken account as required under Section 37ZT(2)(b) of the Ordinance, but which the Adjudicator did not appear to have done so in his finding that the Applicant had been late based entirely on the fact that the Notice of Appeal was received by the Board on 18 August 2015 notwithstanding that it was completed by the Applicant within the 14-day appeal period on 13 August 2015, and that there was no evidence before the Board or any reason why the Applicant would somehow deliberately or otherwise be held responsible for the 4-days delay in the mail for it to reach the Board only on 18 August 2015 that he would have run the risk of not being able to proceed with his appeal to the Board. I am unable to see why he would, nor had the Adjudicator explained in the decision.

25.The Adjudicator was of course entitled to find the mere fact that the Applicant had written down the date as 13 August 2015 did not ipso facto mean that it was filed on that day, but, with respect, it appears to me unreasonable or irrational of the Adjudicator to proceed to find, in the circumstances of the Applicant at the time, that his Notice of Appeal had indeed been late for 4 days, which on any view cannot be regarded as significant or serious, and to have it returned to the Applicant in CIC for him to complete Section 5 with his reasons for the delay, when the Applicant having completed his Notice of Appeal on 13 August 2015 had no reason to believe that he had been late in the first place, as he had subsequently explained in Section 5 that it was delay in the postal service, of which I fail to see why the Adjudicator would not in the circumstances find acceptable, or why it would not be considered as part of the special circumstances that would otherwise make it unjust not to allow the late filing, if it had indeed been late, of the Applicant’s Notice of Appeal.

26.In the premises and for the reasons given, I am of the view that it is reasonably arguable that in its decisions refusing to allow the late filing of both the Applicant’s Notices of Appeal against the two decisions of the Director, (1) that the Board’s findings that the Applicant was late with his first Notice of Appeal and/or that there were no extenuating circumstances which prevented the Applicant to file his Notice of Appeal within time were Wednesbury unreasonable and/or irrational; and (2) that the Board had failed to take account of all the relevant matters of fact within its knowledge including the merits of either of the Applicant’s appeals within the meaning of Section 37ZT(2)(b) of the Ordinance, thus meeting the threshold for leave to be granted to apply for judicial review as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  

27.Accordingly, I extend time for the Applicant to do so as regard the Board’s First Decision, and grant leave for him to apply for judicial review of both the First and Second Decisions of the Board on the grounds stated above, and direct that he shall file the 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 16^th day of June 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