Jagroop Singh v. Torture Claims Appeal Board

HCAL 1861/2020

[2024] HKCFI 88

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1861 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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

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

2.  Leave for the Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 27 September 2019 be granted;

3.  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

4.  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 36-year-old national of India who entered Hong Kong illegally on 11 September 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 India he would be harmed or killed by his former girlfriend’s brothers who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Moharo, District Kapurthala, Punjab, India. After leaving school he worked in a company in Amritsar City where he later met and dated his girlfriend but which they kept as a secret from her family due to their different caste.

3.One day towards the end of 2014 while they were out in the city on a date, they ran into her 2 brothers who then angrily confronted the Applicant about their relationship, and when the Applicant tried to ignore them, they attacked him with a knife that he suffered cut wounds all over his body and lost consciousness, and was subsequently taken by some passers-by to a hospital for medical treatments.

4.After his discharge from the hospital the Applicant became fearful for his safety and took shelter in a friend’s place in Phagwara, but when he was later told by his family that his girlfriend’s brothers had come to his home looking for him, he felt it was no longer safe to remain in India, and so on 2 July 2015 he departed India for Hong Kong but was refused entry and was repatriated to India.

5.2 months later on 6 September 2015 the Applicant again departed India, this time for China, and from there he later sneaked into Hong Kong, and upon 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 29 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”) under the Unified Screening Mechanism (“USM”) for non-refoulement claims.

6.While being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 23 December 2017 for using an identity card of another person and for undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison for 16 months.

7.By a Notice of Decision dated 26 April 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by his girlfriend’s brothers 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 other than to deter him from seeing his girlfriend, that in any event it was a private and personal 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 India with a large population spread across a vast territory 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 New Delhi where it would be difficult if not impossible for his girlfriend’s brothers to locate him.

9.On 2 April 2019 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.

10.It would be relevant to note that in his Notice of Appeal, the Applicant did in section 2 set out his grounds of appeal, and in section 5 also an application for late filing together with a statement of the reasons therefor.

11.By a Decision dated 27 September 2019, the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon applying the 3-stage approach set out in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, and upon finding that the Notice of Appeal was filed more than 10 months late, that such delay was serious and significant, that the Applicant’s explanations of not familiar with the English language and was then in prison were not accepted as valid excuses for such serious delay, and that there were no special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.

12.In its decision, the Board in applying the third stage approach of Begum stated as follows:

“32. I move on to the third stage. Prescription of 14 days in the Ordinance and prescription of 14 days in the Petition Guide are meant to be observed. It is common knowledge, and certainly within my knowledge as a member of the Board and an Adjudicator, that there are many Appeal/Petition cases pending before the Board/Adjudicator. It goes without saying that Appeal/Petition cases under the Unified Screening Mechanism have to be dealt with efficiently and at proportionate cost. Serious or significant late filing of Notice of A/P inevitably results in delay and wastage of costs funded by taxpayers’ money. It affects the efficient running of the Unified Screening Mechanism.

33. I have considered AP’s statement of reasons, and all relevant matters of fact within my knowledge. I am satisfied that there is no special circumstances which would make it unjust not to allow late filing of the Notice of A/P. I therefore refuse the application for late filing, and do not allow the late filing of the Notice of A/P.”

13.On 17 September 2020 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 of the same date in which he just stated that the decision was unfair and unreasonable as his life is in danger in India but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

14.By then the Applicant was also 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 27 December 2019, the Applicant was therefore almost 9 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 almost 9 months must be considered as substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 27 September 2019 to his then reported correspondence address as stated in his Notice of Appeal without being returned through undelivered post. In any event by then the Applicant would have been released from prison, and in his Form 86 he also gave the same address to which the Board’s decision was sent. In the circumstances I am unable to see any good or valid reason for his such substantial delay.

17.As for the merits of his intended application, as noted above that the Applicant has also failed to put forth any proper ground for his intended challenge, nor did he request any oral hearing for his application, but given the seriousness of the issue at hand and the implication of depriving him of the second-tier screening process of his non-refoulement claim by the Board under USM due to a procedural breach, and where his life and limbs were said to be at stake, the Court shall adopt an enhanced standard in scrutinizing the Board’s reasons for refusing to allow the late filing of his Notice of Appeal.

18.While the Board was in my view perfectly entitled, on the basis of the evidence and information submitted by the Applicant in support of his application for late filing of his Notice of Appeal, to find that his delay had been serious and that there were no valid or acceptable reasons to justify such serious delay, but in applying the 3^rd stage enquiry alluded to in Begum on which the Board had directed itself at [28] of its decision, and more significantly in taking into account of any other relevant matters of fact within its knowledge as required under Section 37ZT (2)(b) of the Immigration Ordinance in deciding whether to allow the late filing of the Applicant’s Notice of Appeal, it seems to me reasonably arguable that the Board had failed to consider the merits of the Applicant’s appeal, as held to be relevant by the Court of Appeal in Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, and Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019, both of which the Board would have been aware by the time of its decision, and as Lisa Wong J in the latter case elaborated that it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious:

“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 decision 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.”

19.As noted above in [12], it seems to me that in taking into account of the relevant matters of fact within its knowledge for its decision whether to allow the late filing of the Applicant’s Notice of Appeal, the Board failed to do so as regard the merits of the Applicant’s appeal, and hence the intended application for judicial review is reasonably arguable on that basis, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

20.In the premises and for the reasons given, I extend time to his application and grant leave to the Applicant to apply for judicial review of the Board’s decision not to allow the late filing of his Notice of Appeal on the ground that it failed to take into account the merits of the appeal, and accordingly direct that the Applicant shall file 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 5^th day of January 2024

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