Aman v. Torture Claims Appeal Board

HCAL 2492/2018

[2021] HKCFI 3850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2492 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 6 January 2017 granted; and

2.  leave to apply for Judicial Review of both the decisions of Torture Claims Appeal Board dated 6 January 2017 and 26 October 2018 respectivelygranted.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of India who arrived in Hong Kong on 21 March 2015 but 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 neighbour and fellow Hindu villagers and/or the local police for trying to convert his religion from Hinduism to Sikhism. He was subsequently transferred to the Castle Peak Bay Immigration Centre (“CIC”) pending the determination of his claim.

2.The Applicant was born and raised as a Hindu in Village Kuralia, Ajnala Town, Amritsar District in Punjab State of Northwest India.  After leaving school, he worked in various jobs in the construction works, got married and raised a family with a daughter in his home village.

3.In about 2011 he acquainted with some Sikh co-workers and became interested in their religion of Sikhism, and started to attend some of their religious activities, but when it was discovered by his Hindu neighbor Sonu, an influential Hindu in the village with political connection, and by some other fellow Hindu villagers who started to accuse him of trying to convert from Hinduism to Sikhism, and one day in early 2012 while he was on his way home from work, he was attacked by Sonu and his followers with hockey sticks that he collapsed and lost consciousness, and was subsequently taken to the hospital for medical treatment.

4.After the incident the Applicant kept a low profile without any further incidents, but in 2014 when he thought it was safe to resume his attendance of Sikh activities in his home village, one day in July 2014 after he just returned home from attending certain Sikh activities in a Sikh temple, his neighbor Sonu arrived with some policemen and accused him of having been to the Sikh temple when the police then fired shots at his house until other villagers started to gather that Sonu threatened the Applicant that next time he would be killed before leaving with the policemen.

5.As a result the Applicant felt it was no longer safe to remain in India, and so he fled to Delhi, and from there he later departed India on 20 March 2015 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 17 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 3 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 (“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”).

7.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 Sonu or other Hindu villagers or the local police upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that the Applicant has never actually converted to Sikhism that there is no reason for Sonu or other Hindu villagers to seriously harm or kill him, that there is no evidence of any adverse interest of the police in him given that he had never been arrested and was able to leave the country without any problem, that in the absence of 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 Delhi and Kolkata where it would be difficult if not impossible for his perceived enemies to locate him.

8.The Applicant who was then still being detained at CIC lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal received by the Board on 22 July 2015 was found to have been filed after the expiry of the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, and as such it contained no application for its late filing as stipulated by Section 37ZT(1)(a), and that it was also not properly signed by the Applicant, the Notice of Appeal was returned to CIC for him to do so, which the Applicant did and the Notice of Appeal that was completed and dated 25 July 2015 was resent from CIC and was received by the Board on 28 July 2015.

9.In his re-filed Notice of Appeal, the Applicant included a statement in section 5 for his application for late filing with the following statement:

“I refer to your letter dated on 22 July 2015 which I received on 25^th July 2015 in CIC.

Sorry to say that my appeal petition was received late by your department, because my (USM) case was refused on 3^rd July 2015 and I got my appeal petition file by my lawyer on 9^th July 2015 and my last date of submitting file was on 17^th July 2015 so there was less time for me to file because on 11^th July & 12^th July there was holiday for the official work and there was no lawyer for me to write the appeal. So, my friend help me to write the appeal because I am weak in English. After completing the appeal I gave it on 16^th July 2015 which was on time & also because of post service because of two days no official work in 18^th July & 19^th July 2015 it would be late but as you consider I gave my appeal on time on 16^th of July 2015 at 10 am because of post service it would be late. Then also I apologise for the inconvenient cost and request you to show your lordship and please follow my case & give priority to my case. So, that will be thoughtful to you from the depth of my heart for your lordship.”     

10.It is also of note that in section 2 of his Notice of Appeal the Applicant had provided 6 additional pages of the grounds of his appeal against the Director’s decision.

11.In pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to determine as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a written decision dated 6 January 2017 the Board refused to allow its late filing (“Board’s First Decision”).

12.In its decision the Board found that the Director’s decision was deemed to have been delivered to the Applicant on the second working day after it was sent by post to DLS, that the 14-day period for him to file his Notice of Appeal had ended on 17 July 2015, that the Applicant was therefore 8 days late with his Notice of Appeal, that his explanation that he had sent it by post on 16^th July 2015 was not acceptable, and that there was no obvious or exceptional reason for allowing the late filing of his Notice of Appeal.

13.Meanwhile on 17 January 2017 the Director on his own initiative in writing invited the Applicant to submit 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 8 February 2017 rejected the Applicant’s claim under BOR 2 Risk upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

14.The Applicant again lodged an appeal to the Board against this further decision of the Director, and on this occasion his Notice of Appeal was received by the Board within the 14-day period, but for which the Board did not hold any oral hearing and dealt with it in the absence of the Applicant and on papers, and by a written decision dated 26 October 2018 the Board dismissed the appeal/petition upon finding no substance in the appeal, that the Applicant’s case had already been decided and rejected by the Director that to reconsider his case would be against the principle of res judicata, and that his appeal/petition is just for the purpose of delaying the process for his return to India (“Board’s Second Decision”).   

15.On 7 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision dated 2 November 2018, of which I can only assume he meant the Board’s Second Decision that perhaps he received on that date, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that it would not be safe for him to return to his home country without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

16.However, given the interest at stake and the serious implications of the Board’s decision on the Applicant’s claim as well as its potential consequence, high standards of fairness require that the decision be scrutinized by the Court for any error of law or irrationality or procedural unfairness in its process of the Applicant’s claim.

17.In its decision dismissing the Applicant’s appeal, the Board made the following findings:

“Finding

7. I find that there is no substance in the petition.

8. His case had been decided and rejected by the Immigration Officer on behalf of the Director of Immigration.

9.  To reconsider his case is against the principle of res judicata when he did not indicate which part of the decision he disagreed with and why.” 

18.And on the basis of such findings, the Board arrived at the following conclusion:

“10. His petition is just for the purpose of delaying the process for his return to India.

11. His petition is therefore dismissed.”

19.Firstly, even assuming such findings were correct, and I am not suggesting that they are for the reasons below, but in my view there is simply no basis, evidential or otherwise, for the Board to arrive at such conclusion given that the Adjudicator did not hold any oral hearing for the appeal and therefore never heard any evidence from the Applicant to give such a suggestion nor for the Board to raise such an issue with him, and if there were any such indication from his Notice of Appeal, the Board did not say so or provide any explanation for its such conclusion.

20.More significantly, as it is clearly stated in The Practice and Procedural Guide of The Administrative Non-Refoulement Claims Petition Scheme (“Petition Guide”), 12 September 2016, in determining whether a claim is substantiated and hence non-refoulement protection is to be granted to an applicant, the Adjudicator must have regard to the individual circumstances of each case and to take into account all relevant considerations including the relevant COI ([21] of the Petition Guide) as part of the second tier of the screening process of all non-refoulement claims under the Unified Screening Mechanism (“USM”) since its commencement in March 2014, in which the Adjudicator would not be in an appellate role in an appeal from the Director’s decision, but rather in a rehearing of the matter determined by the immigration officer for the Director, as held by McWalters J (as he then was) in AM v Director of Immigration [2014] 1 HKC 416, and of which His Lordship went on to elaborate at para 30:

“A rehearing can take different forms. It can take place just on the papers or it can involve the calling of witnesses. Given the fact that it is clearly anticipated that the Adjudicator is expected to resolve issues of credibility and for this purpose should conduct an oral hearing, there will be occasions when the adjudication process will require the calling of witnesses and the taking of evidence. But, this will not always be the case. The process can best be described as a rehearing of the claim at the end of which the Adjudicator makes his own determination in respect of it. The process starts with the Adjudicator being provided with all the papers that were before the Assessor at which time the Adjudicator makes a preliminary decision on whether evidence needs to be called. If he decides it does not he must then go on to consider whether notwithstanding that the adjudicator of the petition will be conducted only on the papers he nevertheless requires an oral hearing to determine the claim. This may be because he needs the assistance of the parties on some issue or, because of particular circumstances, procedural fairness dictates that an oral hearing take place.”

21.In the Applicant’s case, given his previous failure to provide any additional facts relevant to his BOR 2 claim to the Director, and as the Adjudicator found that there was no substance in his appeal/petition, the Board may be entitled not to hold any oral hearing for the Applicant’s appeal regarding his BOR 2 Claim, but it seems clear to me reasonably arguable that the Adjudicator erred in law in the process of rehearing the Applicant’s such claim by simply just relying on the fact that his case had already been previously decided and rejected by the immigration officer for the Director without his own determination, or by deciding that the principle of res judicata would apply to the Applicant’s case as part of the 2-tier screening process of such claim by way of a rehearing, especially when as noted above that the Board had never before made any determination of his other applicable claims under torture risk, BOR 3 risk or persecution risk after having refused the late filing of his Notice of Appeal in its First Decision, of which it would be equally relevant for me to also scrutinize the reasons for that decision, notwithstanding that it was not so included in the Applicant’s Form 86 for his intended challenge.

22.As noted above, in its First Decision the Board found the Applicant’s Notice of Appeal to have been late and incomplete as follows:

“2. It is therefore clearly stated that the Petitioner if he were to appeal the Decision, he must file the Notice of Appeal/Petition within 14-day period from 3 July 2015.

3.The Notice of Appeal/Petition was received by the Secretariat of the Torture Claims Appeal Board/Non-refoulement Claims petition Office on 22 July 2015 which was late by 2 days. The Notice of Appeal/Petition was incomplete in that Section 5 of the Notice of Appeal/Petition: Application for Late Filing of Notice of Appeal/Petition was marked as “N/A” and that Section 6 of the Notice was left blank.”

23.Upon receiving the Notice of Appeal as completed and signed by the Applicant on 28 July 2015, the Board proceeded to make the following findings regarding the Applicant’s statement in section 5 of his Notice of Appeal for what was said to be late with its filing as follows:

“8.  What he had stated in the letter was a bare allegation which was not supported by documentary evidence. In the absence of evidence to the contrary, the Notice of Decision was presumed to have served on the second working day after the Notice of Decision was so sent in accordance with section 37ZV(2) of the Ordinance. We are not concerned as to when he got his “appeal/petition file”. It is a matter between him and his lawyer.

9.  Had he really completed the appeal/petition file on 16 July 2015 he would have written down the date at Section 6. However it was left blank without signature.

10.  He stated “ … I gave my appeal on time on 16^th of July 2015 at 10am. Because of post service, it would be late …”. Had he really given his appeal on time on 16 July 2015 at 10am, the Notice of Appeal/Petition would have been received on time on 17 July 2015 because 16 July 2015 was a Thursday and 17 July 2015 was a Friday which were 2 working days. It was a lame excuse to say “because of two days no official work in 18^th July and 19^th July 2015, it would be late.” He deliberately omitted 17 July 2015 which was Friday and working day. His allegation that there was no official work on 18 and 19 July was irrelevant.

11.  Equally he did not tell the truth in that “there was no lawyer for me to write the appeal, so my friend helped me to write the appeal because I am weak in English”. I refer to Section 2B of the Notice of Appeal/Petition under grounds of appeal/petition, he had 6 additional sheets written neatly in his own language as his grounds of appeal. The Notice of Decision consists of 33 pages and 42 paragraphs. It would be impossible for his friend who did not know his case to help him to write his appeal.

12.  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. His application/petition for late filing of Notice of Appeal/Petition is dismissed as it is field out of time.”

24.Again, in the absence of any oral evidence from the Applicant or any further enquiry made with him, there does not appear to be any proper basis for the Adjudicator’s reasons stated in paragraph 11 for its finding that the Applicant had not told the truth when he stated that he needed the help of a friend to write his appeal.

25.More importantly, it seems to me that the Board rejected the Applicant’s claim that he was never late with his Notice of Appeal in the first place as he claimed to have posted it on 16 July 2015 when the Adjudicator appeared to have failed to take into consideration of the envelope which contained his Notice of Appeal sent to the Board on the first occasion, and which he later attached to section 5 of his Notice of Appeal resent to the Board on 25 July 2015, when it indeed shows the postmark of 16 July 2015 which would have substantiated the Applicant’s claim.

26.Had the Adjudicator checked with the attached envelope and discovered the actual postmark of 16 July 2015, he would have accepted that the Applicant was indeed not being late with his Notice of Appeal, and that the delay in it arriving at the Board on 22 July 2015 would likely be due to the fact that he was then being detained at CIC which accounted for the delay and which was clearly not the Applicant’s fault in the first place, and while the Notice of Appeal would still have to be returned to him for his signature, that default would probably be considered at worst as an irregularity of which the Board could have easily overlooked under the circumstances and given that the Applicant was unrepresented and in detention.

27.Furthermore, before deciding whether there were any special circumstances which would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal, it seems to me that the Board did not take account of the merits of the appeal by referring to any of those 6 additional sheets of his grounds of appeal as part of the relevant matter of facts within the knowledge of the Board required by the then Section 37ZT(2)(b) of the Ordinance, and of which the Court of Appeal has held to be relevant regardless of the procedural breaches or the lack of proper explanation therefor in Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019; and in Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019.       

28.For these reasons I am of the view that the intended application for judicial review of both decisions of the Board is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

29.In the premises, I grant leave to the Applicant to apply for judicial review of both decisions of the Board, with time to be extended for him to do so as regard its First Decision, on the grounds that (i) the Board erred in law in treating the Applicant’s appeal/petition regarding his BOR 2 Claim as an appeal against the Director’s second decision and/or failed to properly determine such claim by way of a rehearing; (ii) the Board erred in facts or was irrational or Wednesbury unreasonable in finding that the filing of the Applicant’s first Notice of Appeal was late and/or failed to take into account the merits of the appeal as part of the relevant matter of facts within its knowledge under Section 37ZT(2)(b) of the Immigration Ordinance and/or failed to apply high standards of fairness in refusing to allow the late filing of the Notice of Appeal by reason of special circumstances in the Applicant’s case.       

30.It follows that in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, I direct that the Applicant 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 on the Director as interested party.

Dated the 23^rd 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