Case Document

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HCAL 22/2020

[2024] HKCFI 770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 22 OF 2020

BETWEEN
	Jareen alias Jarreen	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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.  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 11 February 2016 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 50-year-old national of India who had previously in 2002 overstayed in Hong Kong and was subsequently deported again arrived in Hong Kong on 4 June 2006 under another identity as a visitor with permission to remain as such up to 18 June 2006 when she did not depart and instead overstayed, and was arrested by police on 13 September 2006 for which she was subsequently convicted of 3 counts of making false representations and 2 counts of using a false travel document and was sentenced to prison for 10 months. After her discharge from prison and was referred to the Immigration Department for deportation, she raised a torture claim on the basis that if she returned to India she would be harmed or killed by her deceased husband’s family over some property dispute, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Jaithpur, New Delhi, India. After leaving school she married her husband and resided with their 2 daughters together with his parents and brothers in their family home in New Delhi.

3.During their marriage both the Applicant and her husband worked hard to save enough money to purchase their own house in Sangam Vihar, New Delhi in her husband’s name and to be inherited by the Applicant and their daughters upon his death under his will.

4.In 2001 her husband passed away due to his liver problem, but when the Applicant tried to claim the Sangam Vihar property as the beneficiary under his will, her in-laws and her husband’s brothers disputed the will and insisted that the property should belong to them, and when the Applicant refused, they then beat her and eventually drove her and her daughters out of the property, and threatened to kill her if she dared to return.

5.As she became fearful for her life, the Applicant placed her daughters in the care of her mother and moved from place to place to avoid threats from her in-laws, and in June 2006 she departed India for Hong Kong as a visitor and subsequently overstayed, and upon her arrest by the police she raised her torture claim to the Immigration Department, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 13 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 4 December 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on then remaining applicable grounds other than torture risk including 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 assessed the level of risk of harm from her in-laws upon her 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 her other than to deter her from making any claim for the Sangam Vihar property, that in any event it was a private property 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 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 her home district in large cities where it would be difficult if not impossible for her in-laws to locate her.

8.On 21 September 2015 the Applicant while being detained at the Castle Peak Bay Immigration Centre (“CIC”) lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as it was filed outside the 14-days period required by Section 37ZS (1) of the Immigration Ordinance, Cap. 115, 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 Applicant’s notice of appeal.

9.By a Decision dated 11 February 2016 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that it was more than 9 months late which it regarded as hopelessly out of time, and that her explanation of never received the Director’s decision and was only so informed much later by her immigration officer was just a bare assertion unsupported by any documentary evidence that it was not accepted as valid as the decision had already been served on her lawyer from DLS on the same day.

10.Meanwhile on 12 January 2017 the Director on his own initiative in writing invited the Applicant to submit any additional facts which may be considered relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and upon receiving no response from her, the Director by a Notice of Further Decision dated 2 March 2017 also rejected her BOR 2 Claim upon finding that she 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 her return to India.

11.On 5 April 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but before her appeal could be dealt with by the Board, the Applicant in March 2018 and was then still being detained at CIC requested in writing to withdraw her appeal as she wanted to return to her home country.

12.As a result she was interviewed by an immigration officer on 7 March 2018 at CIC when she confirmed that her problem in India had been resolved that it would be safe for her to return to her home country, and accordingly on 8 March 2018 the Director informed the Board and enclosed a copy of the Applicant’s written request to withdraw her appeal.

13.On 9 March 2018 the Board wrote to the Applicant at CIC to request her to confirm her application to withdraw her appeal and that she understand the consequences of her proposed withdrawal, that she may also seek independent legal advice on such consequences, and that if no reply was received from her by 16 March 2018 that the Board would consider approving her application for withdrawal.

14.The Board received no subsequent response or reply from the Applicant, and accordingly by a letter dated 20 March 2018 the Board informed the Applicant at CIC that it was satisfied that her application to withdraw her appeal was freely sought, that she understood the consequences of the withdrawal and that there was good reason for her proposed withdrawal, i.e. she considered it would be safe for her to return to her home country as her problem has been solved, and that accordingly it directed that her appeal be withdrawn.

15.However, the Applicant has somehow remained in Hong Kong, and on 2 January 2020 she filed a Form 86 for leave to apply for judicial review of the Board’s earlier decision of 11 February 2016 refusing to allow the late filing of her notice of appeal against the Director’s decision in rejecting her non-refoulement claim under BOR 3 risk and persecution risk, and put forward the following grounds for her intended challenge:

(1) That the Adjudicator failed to carry out sufficient research and inquiry into the COI conditions and to have regard to the relevant and up-to-date COI research or to focus on the circumstances of the Applicant that the decision in dismissing her claim was founded upon unfair procedure;

(2) That the Adjudicator failed to take into account or put any weight on the relevant COI and by cherry-picking COI information of little or no relevance and/or relied on or put weight on outdated COI instead of the most updated available that the Adjudicator arrived at a decision in dismissing the Applicant’s claim was unreasonable by Wednesbury standard;

(3) That the Adjudicator failed to evaluate and make finding of fact as to whether there exist in the Applicant’s home country a consistent pattern of gross flagrant or mass violation of human rights as mandated pursuant to Article 2 of HKBOR that the decision is unreasonable;

(4) That the Adjudicator failed to analyse and assess whether state protection exist in the Applicant’s home country under the extended meaning namely whether the state had exercised due diligence or sufficient due to diligence and/or misdirected on the law erroneously stating what the extended meaning of state protection was;

(5) That the Board took into account and put weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact or facts not reasonably inferred and failed to take into account and put weight on facts and inferences that were favourable to the Applicant that the Board arrived at a decision dismissing the Applicant’s claim was unreasonable; and

(6) That the Board failed to call for psychological and psychiatric evaluations and reports at any stage of screening or at the appeal stage.

16.By then the Applicant was clearly out of time with her 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

17.As the last day of the three-month period for her to file her Form 86 fell on 11 May 2016, the Applicant was therefore more than 3 ½ years late with her 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.

18.In the Applicant’s case, a delay of more than 3 ½ years must be considered as extremely substantial and inordinate, for which she explained at the hearing of her application that she was not aware of the law and without legal representation that she had had to seek help from others with her application that accounted for the delay.

19.While it is true that when she filed her Form 86 the Applicant was then (and still is) being detained at CIC, where she in fact has been so detained as far back at least as September 2015 as noted above when she lodged her first appeal to the Board, and that her subsequent withdrawal of her second appeal to the Board in March 2018 and later an apparent change of mind about returning to India for whatever reason might have contributed to such serious delay, but given the fact that there should be welfare officers available at CIC whom she could have earlier sought assistance with her application, I am not satisfied that the Applicant has provided a valid justification for her such serious delay.

20.As for the merits, if any, of her intended application, those grounds put forward by her are clearly not relevant to her intended challenge of the Board’s decision which refused the late filing of her notice of appeal and hence did not proceed to determine her appeal or her non-refoulement claim under BOR 3 risk or persecution risk, and hence not reasonably arguable for her intended challenge.

21.However, given the seriousness of the issue at hand and the implication of the Board’s decision which resulted in denying the Applicant of the right to the second-tier screening process of her non-refoulement claim by the Board under the Unified Screening Mechanism (“USM”) due to a procedural breach (albeit a very serious one), and in which her 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 her notice of appeal.

22.From its decision as noted above at [9], it seems clear to me that the Board refused the late filing of the Applicant’s notice of appeal upon rejecting her given reasons for the delay primarily due to absence of any documentary evidence and the long lapse of time after the decision was served on her lawyer from DLS, but without taking into account any other relevant matters of fact within its knowledge as required under Section 37ZT(2)(b) of the Ordinance as the law then was, including the merits of the 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, as Lisa Wong J elaborated in the latter case:

“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, [15]-[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.”

23.In the premises and for the same reasons, and while mindful of the fact that the Applicant did at one time claim of no more problem for her to return to India but later for whatever reason changed her mind and has still remained in Hong Kong, I am of the view that her 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.

24.Accordingly I extend time to the Applicant’s late application, and grand leave to her to apply for judicial review of the Board’s decision of 11 February 2016 on the ground that the Board failed to take account the merits of the appeal and/or the substance of her non-refoulement claim under BOR 3 risk and persecution risk as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance in its decision to refuse the late filing of the Applicant’s notice of appeal, and direct that the Applicant shall file and issue her 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 14^th day of March 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 14 March 2024 Jareen alias Jarreen Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14 March 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 2267/15/9/120/IN467 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 366/14; RBCZ 9001541/16 (Formerly RBCZ 1580/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)