Ethagama Liyanaarachchige Shiron Priyankara Fernando Alias Ethagama Liyanaarachchige Prasath Chaminda Fernando v. Torture Claims Appeal Board

HCAL 897/2019

[2023] HKCFI 839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 897 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:

1.  Leave to apply for Judicial Review be granted; and

2.   The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A).

Observations for the Applicant:

1.The Applicant is a 53-year-old national of Sri Lanka who previously arrived in Hong Kong on 24 September 1997 as a visitor under a passport bearing another identity and subsequently overstayed and was eventually arrested and then repatriated to Sri Lanka on 25 April 1998, but less than one year later on 28 March 1999 he again arrived in Hong Kong as a visitor but this time under his own passport, and again overstayed, and was arrested almost 10 years later on 13 January 2009 for which he was convicted and sentenced to prison for 18 weeks. After his discharge from prison and was referred to the Immigration Department for deportation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by supporters of the political party Sri Lanka Freedom Party (“SLFP”) as he supported their rival United National Party (“UNP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Colombo, Sri Lanka. After leaving school he worked in garment trading business, and supported UNP but without holding any official post or participated in their activities.

3.During the 1994 provincial council election in his home district, the local SLFP supporters started to harass and intimidate the UNP supporters including the Applicant, and one night after witnessing numerous SLFP supporters arming with knives and other weapons roaming the streets shouting threats and abuses against UNP supporters in his neighbourhood, the Applicant became fearful for his life and fled to Ragama where he stayed for 6 months before departing Sri Lanka for South Korea to work in a friend’s business.

4.In 1996 the Applicant returned to Ragama, but later when he heard that some unknown men had come to Ragama looking for him, he feared that they were SLFP supporters looking to harm him, and so he fled to Colombo and departed Sri Lanka on 24 September 1997 for Hong Kong using the passport of another identity and overstayed, and upon his subsequent arrested by police, he was repatriated back to Sri Lanka on 24 April 1998.

5.Upon returning to Sri Lanka the Applicant stayed in Ragama, but later when he heard that some unknown men were looking for him, he again departed for Hong Kong on 28 March 1999 on his own passport where he again overstayed, and after almost 10 years later on 13 January 2009 when he was arrested by police, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 9 January 2015 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer due to alleged health reasons.

6.By a Notice of Decision dated 4 August 2016 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 doubted the credibility of his claim of fear of harm from the SLFP people for fleeing his home country for Hong Kong which was further undermined by his failure to raise his claim upon first arrival in Hong Kong until almost 10 years later and only after his arrest by police, that in any event even his alleged fear were true that the level of risk of harm from those SLFP supporters upon his return to Sri Lanka was assessed as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence or reason for them to have any adverse interest in the Applicant given that he held no official post in UNP or participated in any of their political activities, that in the absence 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”) showed that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 21 million people spread across a vast territory of more than 65,000 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 the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

8.On 28 November 2016 the Director on his own initiative invited the Applicant to submit any 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 15 December 2016 also rejected the Applicant’s claim under BOR 2 Risk upon finding that he had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Sri Lanka.

9.On 3 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against both decisions of the Director, 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 Notice of Appeal, and by a decision dated 11 January 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

10.For the late filing of his Notice of Appeal, the Applicant in Section 5 gave his health issues including gout attacks and arthritis as the reason for his delay as he was in hospital for 4 days in 2017, and in Section 2 of his Notice of Appeal he also set out various grounds for his appeal against the Director’s decisions.

11.In its decision the Board found the Applicant’s delay in the filing of his Notice of Appeal of almost 3 years as against the Director’s first decision, and 18 months against the Director’s further decision, as excessive and inordinate, that his explanations of health reasons for his delay were not reasonable or acceptable, and concluded that he had failed to satisfy the requirement of special circumstances under Section 37ZT of the Ordinance that his application for late filing of his Notice of Appeal was refused and dismissed.

12.On 2 April 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation, nor did he request any oral hearing for his application, but given the seriousness of the issue at hand and the implication of depriving the Applicant of the second-tier screening process of his non-refoulement claim by the Board under the Unified Screening Mechanism (“USM”) due to procedural breaches, and for which his life and limbs were said to be at stake, the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for refusing to allow the late filing of his Notice of Appeal.

13.The Board in its decision first set out the then applicable provisions under Section 37ZT of the Ordinance for the determination of such application for late filing of notice of appeal ([6]) before making the following findings on the reasons given by the Applicant for his delay in filing his appeal in paragraph 9:

“There was no medical report or medical certificate or any other documents filed with the NOA by the Applicant in support of his claim of illness. Even if his claim of delay due to illness is accepted that he was hospitalized for 4 days in 2017, it still fails to explain why it should take him almost 2 years 11 months after he received the Director’s Decision of 4 December 2015 and 18 months after receiving the Further Decision to lodge an appeal. The delay of 2 years 11 months of the Decision and 18 months of the Further Decision is excessive, inordinate and inexcusable without special circumstances shown.”

14.The Board then proceeded to arriving at its reasons and conclusion for refusing the late filing of the Applicant’s Notice of Appeal in paragraph 10 as follows:

“On the basis that the Applicant failed to give a reasonable explanation of special circumstances in the delay of lodging the NOA to the Board other than he has been suffering from gout which is a common ailment that could be abated with proper medication. The ailment would not incapacitate the Applicant totally for a period of close to three years preventing him from filing an appeal by post. The reason for delay given is inadequate to satisfy the requirement of “special circumstances”. On the basis the explanation the Applicant gave in Section 5 of the NOA failed to satisfy the requirement of “special circumstances” under paragraph 9 of the petition Guide and 37ZT of the Ordinance, his application for late filing of the NOA is refused. The application for the late filing of the NOA is dismissed.”

15.On the basis of the evidence and information before it, I agree that the Board was certainly entitled to find the Applicant’s explanations for the late filing of his Notice of Appeal not acceptable, but it seems to me that in arriving at its conclusion to refuse the late filing of his Notice of Appeal, the Board failed to take account of the merits of his the appeal as part of the relevant matters of fact within its knowledge as required by Section 37ZT(2)(b) of the Ordinance, and as held by the Court of Appeal in Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019 as necessary and relevant, as Lisa Wong J elaborated in giving judgment of the Court:

“23. … as the last of the 3-stage enquiry alluded to in The Secretary of the State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, 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.”

16.In the Applicant’s case, as noted above it appears that the Board also failed to take account of the merits of the appeal in its determination and decision to refuse the late filing of the Applicant’s Notice of Appeal as part of the matters of fact within its knowledge required by Section 37ZT(2)(b) of the Ordinance as the law then stood, and for which I am of the view that the Applicant’s intended application for judicial review of the Board’s decision 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.

17.In the premises, and accordingly I grant leave to the Applicant to apply for judicial review of the Board’s decision based on the ground referred to above, and direct that he shall file and issue the 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 the Director as interested party.

Dated the 20^th day of April 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