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

HCAL 662/2019

[2023] HKCFI 94

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 662 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave for the Applicant to apply for Judicial Review of the Board’s Decision be granted;

2.  The Applicant has to issue the Originating Summons within 14 days after this decision in accordance with Order 53, rule 5 (5) of the Rules of High Court; and

3.  Cost of this application be in the cause.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 13 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is legally represented. By an Order dated 25 November 2022, Form 86 was amended. Paragraph 3 of the relief sought asks for an oral hearing of this application if leave is not granted on the papers.

3.Having considered the materials before this Court, I decide that leave should be granted to the applicant for making the applicant for judicial review of the Board’s Decision. As the matter will be further discussed at the next stage, my reasons will be brief.

The applicant

4.The applicant is a national of India. He attempted to enter Hong Kong on 22 June 2013 but was refused permission to land. On the same date, he lodged a torture claim which was later rejected on 27 September 2013. On 6 August 2013, he lodged a claim of Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”). His CIDTP claim was taken as a non-refoulement claim and assessed on all applicable grounds other than torture risk[1]. His claim was made on the basis that, if refouled, he would be harmed or killed by his girlfriend’s family members and also would be arrested by the Indian police for a false case.

5.According to the applicant, he had a romantic relationship with a girl called Manpreet Kaur. Their relationship went smoothly from 2008 to 2012 when their relationship was exposed to Manpreet’s family. They were irritated as Manpreet and the applicant belonged to different political groups. Her family then threatened to kill the applicant if they continued to date. Ten days later, the applicant was summoned to Manpreet’s house where he was assaulted by her family. His report to the police was of no avail. In December 2012, the applicant was again beaten by Manpreet’s family. Thereafter, the applicant fled to Talwandi. Later, the applicant was informed that Manpreet’s father filed a false drug-related case against him. Out of fear, he decided to flee to Hong Kong for protection. Details of his claim are set out at paragraph 14 of the Notice of Decision dated 19 May 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  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”);

b.  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

c.  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”).

7.After the applicant submitted the non-refoulement claim form, the Director had received no replies from him despite multiple communications were sent to him for arranging the screening interview. Thus, the Director proceeded to determine his claim on the available documents [5]-[11]. 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 upon refoulement. In elaboration, the Director found that (i) the alleged injuries sustained failed to attain to the level of severity [21]-[22]; (ii) no indication of Indian government or authorities’ adverse interests against the applicant [23]; (iii) state protection would be available to him [24]-[35]; and (iv) internal relocation was a viable option [36]-[41].

The Board’s Decision

8.On 3 November 2017, the applicant filed the notice of appeal/petition against the Director’s Decision. He was around 5 months late [8].

9.The applicant did not state any reasons for the delay in the notice of appeal/petition [15]. The Board considered that a delay of 5 months was serious and significant [19] and there was no cogent explanation for the delay [20]. It also noted that, after inquiry, the applicant was not detained when the Director’s Decision was posted to his last known address [22]. Alternatively, it was the applicant’s obligation to inform the Director about any change of address to facilitate prompt communications [22]. For these reasons, the Board refused to exercise its discretion to allow the late filing.

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

10.The applicant has filed Form 86 dated 8 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In the Amended Form 86, the applicant has raised the following grounds for review:

(1)  Ground (1): The Board’s Decision is illegal and/or irrational, since the Board/adjudicator, in refusing to allow the late filing of the Notice of Appeal acted contrary to the meaning of section 37ZT(2)(b) of the Immigration Ordinance and contrary to the approach required by the authorities and failed to take into account the relevant consideration of the merits of the applicant’s appeal / the substance of the applicant’s non-refoulement claim;

(2)  Ground (2): The Board’s Decision is procedurally unfair and/or irrational since it failed to draw the applicant’s attention to matters of determinative consequence which required clarification; and

(3)  Ground (3): The Board’s Decision is illegal as it failed to properly apply sections 37ZS(1) and 37ZV(3) of the Ordinance.

DISCUSSION

12.The issue for this Court is whether the Board was entitled to refuse extension of time for the applicant to file his Notice of Appeal under the circumstances as stated in the Board’s Decision.

13.I note that the Board had resorted to the case of The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 (03 March 2016). However, the Court of Appeal in in Re Khan Kamal Ahmed [2019] HKCA 377 dated 2 April 2019, has widened the scope of the Board’s consideration to cover the merits of the applicant’s case, suitably demonstrated in the Director’s Decision, which should be before the Board. The Court of Appeal held that the Board has to consider the merits even if the applicant is absent or late for the filing of the appeal:

“ 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.”

14.The Board should have the Director’s Decision as it should be submitted by the applicant for his appeal or provided for by the Director. The Board has to consider the merits of the case by reference to the Director’s Decision, which the Board had failed to do, a procedural impropriety which may render the Board’s Decision to be set aside under the law.

15.I note that section 37ZT of the Ordinance has been revised 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)”

16.If the matter is remitted to the Board for decision, the Board has to apply the law then existing before the revised version, which does not have retrospective effect.

17.The applicant therefore has a realistic chance of success of his intended judicial review against the Board’s Decision.

CONCLUSION & DISPOSITION

18.Accordingly, I grant leave to the applicant to apply for judicial review. The applicant has to issue the originating summons within 14 days after this decision in accordance with Order 53, rule 5 (5) of the RHC.

19.Costs of this application be in the cause.

Dated the 13^th day of January 2023

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