Shiv Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 591/2020

[2022] HKCFI 2776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 591 OF 2020

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 K.W. Lung:

1.   Extension of time for application for leave to apply for Judicial Review be granted; and

2.   Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 31 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 9 April 2020 is late.[1] I shall deal with this issue below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of India.  He entered Hong Kong illegally on 8 April 2015 and was arrested by the police for being a suspected illegal immigrant on 15 April 2015.  He lodged a non-refoulement claim on 18 April 2015.  However, he failed to report to recognizance and his claim was treated as withdrawn on 29 December 2016.  On 21 March 2017, he was again arrested by the police.  On 24 March 2017, he again lodged his non-refoulement claim.  In the ensuing years, the applicant was convicted on seven occasions. He is currently detained under the Immigration Ordinance pending his deportation from Hong Kong. 

5.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Sethi as he was a prosecution witness for a murder case.  The applicant’s claimed fear originated from a murder case.  In around 2006, the applicant saw the nephew of his ex-wife, Sumeet, in a restaurant. Thereafter, Sumeet’s group involved in a fight with Sethi’s group, leading to the death of Sumeet.  The applicant was the witness of the murder and thus he testified in court.  When Sethi found out about the applicant’s involvement in the case, he started to harass the applicant.  In the first incident, the applicant was assaulted by Sethi’s group.  He then escaped to Himachal but noticed that someone from Sethi’s group tailed him.  Shortly after, the applicant moved overseas and stayed for two years. 

6.In 2011, he returned to India but went into hiding.  In around 2013 or 2014, he was again summoned to testify in court.  Feared of the potential revenge, the applicant informed the judge who granted him protection until the next hearing.  Nevertheless, the police did not stay with him the whole time. One day, the applicant encountered some unknown men who he believed to be from Sethi’s group.  They damaged his taxi but, luckily, he escaped without sustaining injuries.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 21 June 2017 of the Director (the “Director’s Decision”).   

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that he would not face any real or substantial risk of harm.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]-[19]; (ii) state protection would be available to him [20]-[26]; and (iii) internal relocation was a viable alternative [27]-[31].

The Board’s Decision

9.On 26 July 2017, the applicant filed a notice of appeal/petition against the Director’s Decision.  However, the deadline for him to file the notice of appeal/petition to the Board was on 5 July 2017.  He was therefore more than two weeks out of time.  In this premise, the Board first considered whether to allow the applicant’s late filing.

10.The Board considered the applicant’s explanation for the delay.  While the applicant claimed to have health problem, he failed to provide any details or proof for his illness [11]-[12].  The Board also rejected his explanation that his bag was stolen as such explanation was without documentary proof and lacked sufficient details [13]-[14].  As a result, the Board concluded that the applicant’s attitude in not making any efforts to file his appeal indicted that he was not genuine concerned about his safely if refouled [16]-[17]. 

11.In the circumstances, the Board refused to exercise its discretion to allow the applicant’s late filing.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 9 April 2020 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said he was not satisfied with the Board’s Decision without stating any ground.

DISCUSSION

14.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The delay is, of course, serious. However, I shall first consider the merits of the applicant’s case.

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.The issue before this Court is whether the Board was in error in refusing to extend time for the applicant to file his notice of appeal because of the delay.

18.It is apparent that the Board, pursuant to section 37ZT of the Ordinance, refused to extend time for the applicant to file his notice of appeal is based upon the fact that he considered that there were insufficient facts to support the applicant’s reasons for his delay. There is no evidence that the Board had considered the merits of the applicant’s case by reference to the Director’s Decision, which the applicant should have submitted to the Board at the time of his application for filing of his notice of appeal, or it should be in the hearing bundle.

19.In Re Khan Kamal Ahmed [2019] HKCA 377, the Court of Appeal held:

“16. Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.

17. Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

20.  … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

20.On the Director’s Decision, the Director held that there was no evidence showing that any government authorities sought to harm his family. This is inconsistent with the evidence given by the applicant. The Director had not made a decision on the credibility of the applicant’s evidence, therefore, his decision is subject to further investigation or consideration by the Board.

21.I note that section 37ZT of the Ordinance has been amended and is operative on 1 August 2021. The new section reads:

“Late filing of notice of appeal

(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 all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(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 the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b)  failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)”

22.If the case is remitted back to the Board for re-consideration, either by the same Board or another Board, the case should be considered under the law before the enactment of the amended version of section 37ZT, which does not have retrospective effect.

23.The applicant succeeds to show that he has realistic prospect of success in his proposed judicial review.

CONCLUSION

24.I extend time for the applicant to file his application and I grant leave for the applicant to apply for judicial review of the Board’s Decision. The applicant shall issue an originating summons for his application within 14 days after this Order in accordance with Order 53, rule 5(5) of the RHC.

Dated the 7^th day of September 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