Sarker Md Mamun v. Torture Claims Appeal Board

HCAL 344/2019

[2022] HKCFI 1004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 344 of 2019

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:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Bangladesh who entered Hong Kong illegally on 5 December 2015 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his neighbor over their land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Narayanganj, Bangladesh. After leaving school he worked as a farmer and later in a garment shop, got married and raised a family with 2 children in his home district where he also owned a piece of land.

3.In about 2012 his neighbor who owned the adjacent land tried to claim his land, and when the Applicant refused, his neighbor one day came with men armed with bamboo sticks and other weapons to his home looking for him. Fearing that they were coming to attack him, the Applicant fled from the backdoor to hide in a relative’s place in Dhaka, and on 28 November 2015 he departed Bangladesh for China, and from there he sneaked into Hong Kong on 5 December 2015, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”), during which he requested to withdraw his claim but failed to confirm his intention in writing, and the Director proceeded to consider his claim as pursued.             

4.By a Notice of Decision dated 29 June 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his neighbor upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that it was a land dispute between them 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”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 157 million people spread across a vast territory of more than 140,000 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 Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for his neighbor to locate him.

6.On 27 August 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 filed outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, and in pursuance of 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.

7.It is of note that the Applicant in his Notice of Appeal gave the reason for his late filing as having forgotten to do so within time, and that he also provided a full page of his grounds of appeal in section 2 of his Notice of Appeal.  

8.By a written decision dated 28 January 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that he had been late by more than one month, that such delay was inordinate, that his purported reason was not justified, and that there were no special circumstances to allow the late filing of his Notice of Appeal.  

9.On 8 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he merely repeated his claim as before of problem in his home country that he cannot return there but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.Nevertheless, given the serious implication of the Board’s decision which in effect denied the Applicant of the right to proceed to the second tier of the screening process of his non-refoulement claim, high standards of fairness require that the Board’s reasons for refusing to allow the late filing of his Notice of Appeal be scrutinized by the Court for any error of law or irrationality or procedural unfairness in the process.

11.In its decision the Board elaborated its reasons as follows:

“16. Despite the importance of an appeal/a petition and the alleged seriousness of the Claim, the Appellant yet “forgot” to file his appeal/petition in time. I am not satisfied that the purported reason amounts to a special circumstance that the application for late filing of the Notice of Appeal should be allowed. In my view, the purported reason is just unjustified.

17. On the other hand, there is no complaint that the Notice of Decision was given to the Appellant lately. The last day (as extended by the Section 37ZV) when the Notice of Appeal must be filed with the Board should be 17 July 2018. Yet, the Board received the Notice of Appeal on 27 August 2018. The Appellant has admittedly failed to comply with the strict time limit requirement.

18. The Appellant failed to provide any other information and documentary evidence to enable me to find that there are special circumstances. Yet, the undisputed and objective evidence is that the Appellant was late for more than 1 month. The delay is just inordinate and unjustified. In addition, it is not consistent with what a desperate appellant would and should behave.

19. All in all, I am not satisfied that there is special circumstance that the application for late filing of the Notice of Appeal should be allowed.”

12.While the Board was certainly entitled to find the Applicant’s delay inordinate and that his given reason unjustified, it did not appear to have taken account of all the relevant matters of fact within its knowledge in its consideration whether to allow the late filing of the Applicant’s Notice of Appeal, as so required by Section 37ZT(2)(b) of the Ordinance, as the law then stood prior to its subsequent amendments on 1 August 2021, and of which the Court of Appeal in Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, held to include the merits of the appeal, as Lisa Wong J in giving the judgment of the Court stated 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.” 

13.In the present case, for the same reasons, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision in refusing to allow the late filing of his Notice of Appeal is reasonably arguable.

14.I am of course mindful of the fact that, as noted above, subsequent to the legislative amendments on 1 August 2021 to inter alia the relevant Section 37ZT of the Ordinance that it is now no longer necessary for the Board to take account of any other relevant matters of fact within its knowledge other than the statement of reasons stated in the application for late filing of the notice of appeal, and hence for those which the Board then wrongfully failed to do so prior to the amendments but in granting leave now thereafter may lead to an argument of the doctrine of futility.

15.Given the findings of the Court of Appeal as to the importance of the consideration of the merits of an appeal in such applications as noted above, and the serious implications and gravity of a denial to the second-tier of the screening process of applications of this nature where very often “life and limb” is at stake, I am of the view that high standards of fairness require that leave should nevertheless be granted to the Applicant to apply for judicial review of the Board’s decision, as any issue relating to the doctrine of futility which may arise at the hearing of the application can be properly argued there and then.        

16.In the premises, and for the reasons given, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the ground that the Board failed to take account of the merits of the appeal in refusing to allow the late filing of the Applicant’s Notice of Appeal, and accordingly 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 8^th day of April 2022.

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