Masih Malkeet v. Torture Claims Appeal Board

HCAL 983/2023

[2023] HKCFI 2525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 983 OF 2023

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 Bruno Chan:

1.  Leave to apply for Judicial Review be granted;

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

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 31-year-old national of India who arrived in Hong Kong on 6 March 2016 as a visitor with permission to remain as such up to 20 March 2016 when he did not depart and instead overstayed, and on 22 March 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by members of the Hindu extremist organization Rashtriya Swayamsevak Sangh (“RSS”) for being a Christian. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in a Christian family in Village Malo Majra, Teh & District Patiala, Punjab, India where he was taught the Christian faith as a child by her parents and also attended religious studies in a Bible School.

3.After leaving school he worked as a salesman, and in 2014 became a pastor of the local church in his home district.

4.However, in late 2014 he started to receive threats from RSS members that he should stop all his missionary activities or else they would kill him, and when he refused, they beat him with wooden sticks that he suffered cuts and bruises all over his body, and thereafter they made false charges against him that he was arrested by police and was detained for interrogations before eventually released without charge, whereupon he made a complaint to the local police superintendent of the harassments from the RSS people.

5.Several days later those RSS members came to the Applicant’s church and beat him again severely that he was subsequently taken to the hospital for medical treatments.

6.After his local church had made formal complaints to the police but to no avail, the Applicant moved to Ropar where he established a church for the local Christians, but soon the RSS people came to threaten him again and eventually drove him out of town.

7.The Applicant therefore moved from town to town to spread the Bible to the local Christians, but in January 2016 he was shock to learn that his uncle and son who were also Christians had been killed by RSS people due to their Christian faith, and as he felt it was no longer safe to remain in India, he therefore departed on 6 March 2016 departed for Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 18 October 2017 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”).

9.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 those RSS people upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, 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”) 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 areas of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for those RSS people to locate him.

10.On 14 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was deemed to have been filed outside the 14-day period required by Section 37ZS (1) of the Immigration Ordinance, the Board in pursuance of Section 37ZT (2) of the Ordinance 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 12 April 2018 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

11.It would be relevant to note here that in his late Notice of Appeal, the Applicant did provide in section 5 of his Notice an application for late filing with a statement of the reasons therefor, as well as his proposed grounds of appeal as set out in section 2 of his Notice of Appeal.

12.In refusing to allow the late filing of his Notice of Appeal, the Board found the Applicant to have been late by 1 ½ months, that it was a serious and significant delay, that his explanation of receiving the decision late was not supported by any evidence, while his other explanation of having to look for someone to translate the Director’s decision for him and to help him with his intended appeal did not amount to special circumstances for the purpose of Section 37ZT of the Ordinance, that he was then not in custody at the relevant times, and that the Director’s decision was sent to him care of DLS who represented him in his application.

13.On 21 June 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge after leaving out those which with reference to the Director as follows:

(1) that the Adjudicator reached the decision wrongly in assessing his non-refoulement claim and that the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his right to life must be protected by criminal law from extra-judicial killings that the Applicant may face if deported back to his home country;

(2) that the Board failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(3) that the Board failed to take into account that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4) that the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give enough weight to such evidence and instead ruled otherwise against the Applicant which was a clear case of unfair attitude shown by the board which in itself is enough to render the decision void;

(5) that the Board failed to attain high standard of fairness in failing to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as reported by various human rights organizations that had compiled reports on the matter which stated testament to the Applicant’s assertions, and as such the Board’s decision should be considered unreasonable in the scope of public law.

14.By then the Applicant was however seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.As the last day of the 3 month-period for him to file his Form 86 fell on 12 July 2018, the Applicant was therefore some 4 years 11 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16.In the Applicant’s case, a delay of 4 years 11 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that he was arrested by the police on 20 March 2018 over some drugs offences and was in police’s remand pending trial until sometime in September 2021 when he was acquitted after trial by the court, and then he was then transferred to the Castle Peak Bay Immigration Centre (“CIC”) under the detention of the Immigration Department where he was eventually informed of the Board’s decision.

17.The Applicant has not provided any documentary evidence in support of his assertions, while the record shows that the Board’s decision was indeed sent on the same day of 12 April 2018 to his then reported residential address at To Kwa Wan, Kowloon. If the Applicant were indeed telling the truth about his arrest and was then on police’s remand since 20 March 2018, he certainly would not have received the Board’s decision sent to his former address, and while it may be argued that he could still have informed the Board of his situation so that the decision could be resent to him, and that if he was indeed only released in September 2021 upon his acquittal by the court as alleged, he would still have been seriously late by some 1 ½ years with his present application. In any event it would be necessary to proceed to consider the merits, if any, of his intended application.  

18.However, those grounds put forward by the Applicant as listed above are all just some broad and vague assertions of his which bear no relevancy at all to his intended challenge of the Board’s decision which was one that refused the late filing of his Notice of Appeal without any consideration of his non-refoulement claim at all, and hence none of them are reasonably arguable for his intended challenge.

19.This does not necessarily follow that there are no merits in his intended application, as while the Board was certainly entitled to find the Applicant’s delay of 1 ½ months serious and significant, and was also correct not to accept his explanations for such delay, but it appears from the decision that in refusing the late filing of the Notice of Appeal, the Board appears to have failed to take into account the merits of the appeal as part of the relevant matters of fact within its knowledge under Section 37ZT (2)(b) of the Immigration Ordinance, as it was then the legal requirement, and as held to be necessary by the Court of Appeal in Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, and in Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, as Lisa Wong J in giving judgment of the Court in the latter case explained:

“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 reasonable arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

20.Given what were stated in [15] – [19] of the decision, it seems to me reasonably arguable that the Board did fail to take account of the merits of the appeal as part of the relevant matters of fact within its knowledge under Section 37ZT (2)(b) of the Immigration Ordinance when it refused to allow the late filing of the Applicant’s Notice of Appeal, and/or if it did that it failed to give any or sufficient reasons why the merits would not amount to special circumstances that would make it unjust not to allow the late filing of the Notice of Appeal, thus meeting the threshold for leave to be granted for the Applicant to apply for judicial review of the Board’s decision.       

21.In the premises and for the reasons given, I extended time to the Applicant’s late application, and grant leave for him to apply for judicial review of the Board’s decision on the grounds as stated above, and direct that he shall accordingly 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 4^th day of October 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