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

HCAL 1461/2019

[2024] HKCFI 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1461 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 to apply for Judicial Review be granted; and

2.  The applicant must issue the originating summons within 14 days after the grant of leave in accordance with Order 53, rule 5 of the RHC.

Observation for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 28 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.As the applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a date was fixed for him to appear on 13 September 2023. However, he was absent without prior notice to the Court. His application is therefore dealt with on paper.

The applicant

3.The applicant is a national of India. He came to Hong Kong on 1 December 2014 on strength of his Indian passport and was allowed to stay as a visitor until 15 December 2014. He did not depart and overstayed since 16 December 2014. On 16 December, he was arrested for overstaying. He raised his non-refoulement claim on 17 December 2014 and he was released on bail. On 10 February 2018, he was arrested for trafficking in dangerous drug.

4.The applicant claimed that, if refouled, he will be ill-treated or even killed by Mr Lala and Mr Lalu because he failed to repay his debt and refused to join the Trinamool Party.

5.Briefly stated, the applicant was a member of a political party called CPI(M). He had obtained a hawking card by which he could set up a hawking stall on the street by the assistance of CPI(M). In 2010, he borrowed money from Mr Lulu for his hawking business. However, he was unable to repay the money. At the same time, Mr Lulu’s brother Mr Lala invited him to join Tirnamool Party. He refused because he was afraid that his hawking card would be forfeited. For those 2 reasons, he was assaulted 3 times. He had stayed in his sister’s home to avoid his enemies. His elder sister arranged for his flight to Hong Kong. Details of his story can be found in paragraph 9 of the Notice of Decision dated 14 March 2018 (“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 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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reason that there are no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his enemies upon his return to India.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. However, he did not submit a completed notice of appeal. The Board had written a letter to him. Ultimately, the Board refused to let him file his notice of appeal. The reasons are set out below:

“7. The Board’s letter also reminded the Appellant that if the Notice of Appeal was filed after the expiry of the 14-day period, which was, 3 April 2018, then the Appellant must make an application for the late filing and give his reasons for the delay.

8. The Appellant did eventually submit his complete Notice of Appeal to the Department on 11 May 2018, which was more than a month after the expiry date.

9. The Appellant had given his explanation about the delay in Section 5 of the Notice of Appeal. What he said was basically that he had been remanded in Lai Chi Kok Reception Centre, and he could not understand English so he failed to send the complete form.

10. If the Appellant had encountered difficulties in the language, he could have raised it earlier and asked for assistance. He had not done so. It is obvious that the Appellant understands enough English and could express himself sufficiently clear in English. He must have understood the contents of the Decision including the particular about the procedure requirements of the appeal; otherwise he would not have submitted the first Notice of Appeal with the missing parts. As to why the Appellant had left out those missing parts, he had not given a satisfactory explanation, and I am not in a position to speculate.

11. In this case, I cannot accept language barrier to be an excuse for the Appellant to have submitted an incomplete form. Moreover, the Appellant had not provided me with any reason why there was a month-long delay in submitting the completed Notice of Appeal, even after the Board’s letter of 23 March 2018.

12. There is actually another letter from the Appellant received by the Board on the 9 May 2018. The Appellant wrote that he had already submitted the missing parts and he was concerned about why he was not yet given a hearing date. That has nothing to do with the issue of late filing.

13. Having considered the circumstances, I see no sufficiently cogent reason to grant leave to the Appellant to file the Notice of Appeal late.”

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

9.The applicant has filed Form 86 dated 30 May 2019 for leave to apply for judicial review of the Board’s Decision.

10.The applicant had submitted the grounds in support of his application. However, in view of my decision below, it is not necessary to set out them here.

DISCUSSION

11.The question before this Court is whether the Board was correct to refuse to extend time for the applicant to file his notice of appeal for the reasons stated in the Board’s Decision.

12.The Board had made its decision without considering the merits of the applicant’s case. This is inconsistent with the Court of Appeal’s decisions in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 in which it was held:

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

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.”

13.Although the Board’s Decision predates the judgment of the Court of Appeal, in my view, the rationale of the Court of Appeal is binding upon the Board.

14.In the circumstances, the Board had committed an error of the law. As such, there is realistic prospect of success in the applicant’s intended application for judicial review of the Board’s Decision.

CONCLUSION

15.According, I grant leave to the applicant’s application. The applicant must issue the originating summons within 14 days after the grant of leave in accordance with Order 53, rule 5 of the RHC.

Dated the 2^nd day of February 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