Singh Neeraj v. Torture Claims Appeal Board

HCAL 142/2019

[2021] HKCFI 3648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 142 of 2019

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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 2 December 2016 granted; and

2.  leave to apply for Judicial Review of both the decisions of Torture Claims Appeal Board dated 2 December 2016 and 4 January 2019 respectively granted.

Observations for the Applicant:

1.The Applicant is a 52-year-old national of India who first travelled from Macau to Hong Kong on 24 April 2015, and when he was refused entry by the Immigration Department, he returned to Macau until 4 May 2015 when he again travelled to Hong Kong, and when he was again refused entry, he then raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by a gangster in his home district trying to extort money and properties from him and/or tortured by some of the local police under the influence of the gangster and which had led to the death of his father and brother. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Faridpur, Amroha District, Uttar Pradesh, India. After leaving school he worked as a farmer on his family’s farmland in Ghajola, got married and raised a family with two children.

3.One of his cousins had married a local gangster named Ashok who often demanded from the Applicant’s family especially his father for money and properties which the Applicant’s father had always tried to complied within his means.

4.One day in 2002 when Ashok again asked the Applicant’s family for money, the Applicant’s father told him that he could no longer afford to do so and asked him to leave, which he did without saying anything.

5.However, 2 months later some policemen came to the Applicant’s home and took his father and brother away and detained them at the Rajapur Police Station where they were tortured, and it was after the Applicant’s family had paid a bribe to the police that they were released, of which the Applicant suspected that Ashok was behind the whole thing as he was seen inside the police station.

6.Upon their release both the Applicant’s father and brother were found to sustained injuries from the torture, with his father’s injuries much more serious that he was hospitalized for 4 months but eventually died in early 2003.

7.A few months later Ashok again came to the Applicant’s home demanding for money, but when the Applicant’s mother explained that she simply could not afford to pay him any money, Ashok warned her that there would be bad consequences before he left.

8.About a week later some policemen again came to the Applicant’s home to take him and his brother away to the Rajapur Station where they were detained and tortured, and while the Applicant was released later on the same night, his brother was sent to prison for a month, for which the Applicant suspected that Ashok was again behind it.

9.To avoid further threats from Ashok, the Applicant left his home village to take shelter in his in-laws’ place in Moradabad, and in 2004 he departed India and entered UK illegally, and upon his arrest he raised a refugee claim, but before his application could be finalized, he left UK in 2010 to return to India.

10.However, the threats from Ashok and police harassments against the Applicant and his family had persisted, and after his brother died from being tortured by the Rajapur police in late 2012, the Applicant moved to New Delhi where he stayed without incidents until June 2014 when he heard that Ashok had made some false charges against him to the local police, he therefore departed India in June 2014 for various places in South East Asia, and in May 2015 he arrived in Hong Kong, but 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 12 June 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

11.By a Notice of Decision dated 19 August 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”).

12.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 Ashok or the local police upon his return to India as low given the fact that they had not done anything against his family since his departure that it is doubtful that they would still have any adverse interest in him after all these years, that in the absence of any reliable evidence 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 (“COI”) show 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 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of India away from his home district in large cities such as New Delhi where he had stayed before without incidence and where it would be difficult if not impossible for Ashok to locate him.

13.The Applicant then lodged an appeal to the Torture claims Appeal Board (“Board”) against the Director’s decision, but when the Board received his Notice of Appeal on 7 September 2015, it found that it was filed outside the 14-day period stipulated by Section 37ZS (1) of the Immigration Ordinance, nor did it come with any application or explanation for its late filing as required by Section 37ZT(1) of the Ordinance, it was therefore returned to the Application for him to do so, which he did and re-submitted his Notice of Appeal on 18 September 2015, and in which he stated in section 5 as follows:

“I would like to inform you about, I lodge the appeal on time but there is delay in postal service, and there were holidays that’s only and even in this detention Saturday and Sunday welfare is not available, hope you understand the situation, and give priority for it.”

14.It would also be of note that he had also stated of being detained at Castle Peak Bay Immigration Centre (“CIC”), and in section 2 of his Notice he inserted some 6 pages of statements for his grounds of appeal against the Director’s decision. 

15.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 written notice dated 2 December 2016 the Board refused to allow the late filing upon finding that it had been late by 16 days, that it was an inordinate delay, and that there were no special circumstances that would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal (“the Board’s First Decision”).  

16.Meanwhile on 13 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider 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 form the Applicant, the Director by a Notice of Further Decision dated 16 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 including right to life under BOR 2 being violated upon his return to India.

17.The Applicant on 7 April 2017 again lodged an appeal to the Board against this Further Decision of the Director, but as it was also filed outside the 14-day period, for which he on this occasion did in section 5 of the Notice of Appeal provide his explanation that “I received it on 5^th April. Thus I got late. Thus I could not submit my document on time.”

18.In this second Notice of Appeal, the Applicant listed a private residential address, and in section 2 he also set out one page of his grounds of appeal against the Further Decision of the Director.    

19.The Board as before proceeded to decide as a preliminary decision without a hearing whether to allow its late filing, and by a written notice dated 4 January 2019, the Board refused to allow its late filing upon finding that the deadline for the Applicant to file his Notice of Appeal fell on 4 March 2017, that it was just a bare allegation without explanation or documentary evidence that he received the Director’s further decision only on 5 April 2017, that such a delay of more than one month was inordinate, and that there were no special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal (“the Board’s Second Decision”).

20.On 15 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this Second Decision of the Board, and in his supporting affirmation of the same date he just stated that he rejects the decision as it disregarded the danger and threats that he will face in his home country if he is deported.

21.The fact is that the Board’s decision is one which disallowed the late filing of the Applicant’s Notice of Appeal, and hence it never proceeded to consider his claim including any risk that he might face in his home country, which would otherwise be part of the two-tier screening process of his non-refoulement claim that he would have been entitled to under the Unified Screening Mechanism (“USM”) had he not been late with the filing of his Notice of Appeal. 

22.Nevertheless, the Court will adopt an enhanced standard in scrutinizing the Board’s decision in view of the seriousness of the issue at hand and the consequences of denying the Applicant of his right to such screening process of his non-refoulement claim.

23.Before proceeding to do so as to the Board’s reasons for refusing to allow the late filing of the Applicant’s Notice of Appeal, it would be of help to first set out the relevant provisions for such determination under Section 37ZT of the Ordinance:

“(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 of appeal 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.”

24.In the Second Decision, the Board made the following findings on the Applicant’s late Notice of Appeal:

“12. It was just a bare allegation without explanation as to why he ‘received it on 5^th April’.

13. There was no relevant documentary evidence in support of such reasons.

14. He did not disclose what document he could not submit on time. Again it is a bare allegation.

15. A delay of more than 1 month after the 14-day period is inordinate delay.

16. There are no special circumstances to show that it would be unjust not to allow the late filing.

17. I find there was inordinate delay in the filing of this Petition which could not be tolerated.

18. In the premise, this Petition is dismissed.”

25.In my judgment the Board was entitled to find the Applicant’s delay of more than one month inordinate, and in the absence of any further details or documentary evidence from him that it was also entitled to refuse his bare assertion of receiving the Director’s further decision only on 5 April 2017, but it seems clear to me that in arriving at its decision not to allow the late filing of the Notice of Appeal, the Board failed to take account of the merits of the Applicant’s appeal or his stated grounds of appeal set out in his Notice of Appeal as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance as noted above, and as held by the Court of Appeal in Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, as Lisa Wong J held to be necessary in the Board’s exercise of its discretion 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 Bboard 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 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.”

26.In fact, the Board also failed to do so in its First Decision when it refused to allow the late filing of the Applicant’s earlier Notice of Appeal against the Director’s first decision, when it made the following findings in its First Decision without taking account of the merits of that appeal of the Applicant:

“9. The Petitioner’s reasons for the delay cannot be substantiated because:

(i) The fact that the TCAB received his Notice of Appeal/Petition on 7 September 2015 is conclusive evidence that it received on that date which was after the 14-day period.

(ii) That calendar did not show there was any holiday between 2 and 4 September 2015. 5 September 2015 was a Saturday and 6 September 2015 was a Sunday. So had he filed his Notice of Appeal/Petition on time it should have reached the TCAB well before 7 September 2015.

(iii) It is also irrelevant that welfare in the detention centre was not available on Saturday and Sunday.

(iv) There is no evidence to show that there was delay in postal service.

10. There was a delay of 16 days before he complied with Section 5 of the Notice of Appeal/Petition. It is inordinate delay and there were no exceptional circumstances which justified the delay.

11. By reasons aforesaid there is no special circumstance that it would be unjust not to allow the late filing of the Notice of Appeal/Petition and this application is dismissed as it is filed out of time.”

27.Furthermore, as noted above, when the Applicant first submitted this Notice of Appeal on 7 September 2015, he was only 4 days late, one which cannot on any view be regarded as significant, especially when he was then being detained at CIC, of which the Board must be aware as it was so stated in his Notice of Appeal, where some delays with incoming and outgoing mails would be inevitable and which the Board should have taken into account instead of adopting what appears to me a rather rigid and unsympathetic approach instead by insisting that the Applicant must re-submit his Notice of Appeal so as to include a statement of reasons for his delay which thus brought the delay to 16 days which it then proceeded to find as inordinate. In the premises it is my view that the Board should have exercised its discretion by allowing the Applicant the benefit of the doubt when he explained that any delay could have been caused by the postal service when his Notice of Appeal was posted from CIC, and that it is reasonably arguable that such findings by the Board were Wednesbury unreasonable in the circumstances of the Applicant’s case.

28.In Re Qasim Ali supra where the applicant was similarly in detention and that the Board found his delay of 8 days a “serious and significant failure to comply with the rules”, the Court of Appeal disagreed with such findings and held as follows:

“22.    We are surprised by the findings by the Board that a delay of 8 days was a “serious and significant failure to comply with eth rules” and that the applicant would have no good reason for the breach. In our view, it is reasonably arguable that such findings are unreasonable in the Wednesbury sense in light of the circumstances of this case:

(1)   A delay of 8 days cannot, on any view, be regarded as serious or significant.

(2)   In this case, the service of the decision under appeal on the applicant took 6 days.

(3)   The applicant was, to the Board’s knowledge, in prison when he received the Director’s decision. One can reasonably presume that an applicant in such a situation might or would have to go through more hurdles (if not difficulties) in arranging his affairs. That the applicant could eventually lodge his appeal to the Board in August 2017 (Call-1 Form [42]) is therefore neither here nor there.

(4)   While the applicant had not provided a reason for his delay in section 5 of the appeal form, he had rectified the omission by his said letter dated 23 August 2017 to the Board before the Board exercised its discretion. The explanation was that he was illiterate and could not find anyone educated to help him. The fact that such circumstance might affect a great number of non-refoulement claimants does not render it an untrue or unreasonable explanation for the late appeal. In this regard, we note that the Board did not disbelieve the explanation. Rather, the Board found the given reason “unacceptable” ([19] of the Board’s Decision). We have difficulty with such assessment. The applicant’s inability to read, especially, English would mean that he would not appreciate the notes about the time limit for appeal until he could locate someone who could interpret and explain them to him.”  

29.Accordingly, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decisions, not just the Second Decision but also the First Decision as part of the 2-tier screening process for his non-refoulement claim, is reasonably arguable and meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Chow (2007) 10 HKCFAR 676.

30.In the premises, I extend time and grant leave to the Applicant to apply for judicial review of both decisions of the Board on the grounds that (i) it failed to take into account the merits of either appeal as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance; and of the Board’s First Decision that (ii) its findings that the Applicant’s delay was inordinate with no exceptional circumstances or justification were Wednesbury unreasonable in the circumstances of the Applicant’s case.

31.I accordingly direct that the Applicant shall file an originating summons based on those grounds 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 2^nd day of December 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