Case Detail

HCAL 385/2019

[2022] HKCFI 510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 385 OF 2019

_____________________

	J	Applicant
and
	Torture Claims Appeal Board	Respondent
and
	Director of Immigration	Interested Party

_____________________

Before: Deputy High Court Judge P. Li in Chambers

Date of Decision: 24 February 2022

________________________

D E C I S I O N

________________________

1. By a consent order dated 8/11/2021, this court remitted the appeal against the decision of the Director[1] to the TCAB for fresh determination. The applicant applied for costs against the Director to be dealt with by written submission. [2]

2. The applicant is a national of Gambia. He was allowed to stay in Hong Kong as a visitor until 29/12/2014. He overstayed and surrendered to the Immigration Department on 2/1/2015. He lodged a non-refoulement claim on 13/2/2015. He was assisted by the PSO lawyer[3].

3. The basis of his claim is not relevant for the present application for costs, suffice it to mention that he was asked to repay the part payment of a land transaction in which he acted as the middleman. He would be harmed or killed by the purchasers if refouled.

4. The Director dismissed his claim on 3/4/2018. The applicant had a conference with the PSO lawyer—Mr. Chan of Eric Chan & Co—on 13/4/2018. He was given a copy of the Director’s decision. [4]

Late filing of the Notice of Appeal

5. The applicant appealed to the TCAB in person. He filed the Notice of Appeal (“NOA”) on 25/4/2018. In section 5 of the NOA, he stated that he received the decision of the Director on 13/4/2018. He did not attach any supporting documentary evidence.

6. In the course of consideration, the adjudicator wrote to the Director enquiring about the date and manner of service of the decision.

7. The Director replied on 20/11/2018 that the decision was delivered to the PSO lawyer by registered mail on 3/4/2018.

8. The adjudicator accepted the Director’s explanation. He ruled that the deadline for filing the NOA should be 20/4/2018. The adjudicator pointed out that even accepting that the applicant received the decision on 13/4/2018, there was no explanation as to why he took 12 days to file the NOA on 25/4/2018. The applicant filled in section 5 of the NOA. This indicated that he realized it was out of time. The adjudicator concluded that there was insufficient evidence, documentary or otherwise, to justify late filing. The adjudicator refused late filing of the NOA.

Judicial Review

9. The applicant filed the leave application for judicial review on 11/2/2019. He attached the decisions of the TCAB and the Director. He was later granted legal aid and represented by KCL & Partners.

10. Deputy Judge CP Pang dealt with the leave application on paper. The Judge pointed out that exhibits J-16—J-19 of the 3^rd affirmation of the applicant showed that the decision of the Director reached the PSO lawyer on 11/4/2018. The applicant was informed of the decision on 13/4/2018. The Judge ruled that the deadline for filing the NOA should be 25/4/2018. It was reasonably arguable that there was no late filing. The Judge further pointed out that in view of the short delay, the adjudicator should have made more inquiries. Lastly, the adjudicator had not considered the merits of the claim. The Judge granted leave for judicial review on the grounds in the amended Form 86.

11. The case was later disposed of by a consent order. The appeal was remitted to the TCAB for determination.

12. The applicant applied for costs against the Director. Counsel for the applicant, Mr. Francis Ngan, argued that by the letter dated 20/11/2018, the Director had misled the adjudicator. Subsequent inquiry revealed that the decision was sent to the PSO lawyer by registered mail on 9/4/2018 instead of 3/4/2018. In the absence of any explanation, the Director’s conduct was improper and wholly inexcusable.

13. Mr. Rex Cheung, SGC[5], argued that the adjudicator should have made more enquiries given the applicant asserted that he only received the decision on 13/4/2018. The information from the Director did not preclude further enquiry by the adjudicator. Mr. Cheung pointed out that the Director was an interested party to facilitate the disposal of this case. The Director had not opposed the applicant’s leave application. The Director had been acting in good faith.

Discussion

14. It is well settled that a court would make no order for costs against an inferior court or tribunal which did not appeal or appeared only to assist the court as a neutral party, unless there was a flagrant instance of improper behavior.[6]

15. An appeal board or a tribunal should not compromise its neutrality by taking a stance in court proceedings to support its own decisions.

16. Not all obvious or even blatant mistakes in law constituted flagrant improper behaviour. The criteria were stringent and required grave impropriety. A tribunal must have acted perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance.[7]

17. What amounts to ‘flagrant improper behavior’ is not discussed in the authorities, however, in R v Liverpool Justices, Ex parte Roberts, Lord Parker CJ suggested,

“…the general practice is not to award costs against a party who does not appear to resist an application of this sort. That is not to say that there may not be cases where the court thinks it right to order a party to pay costs if, for instance, he had materially contributed to the error giving rise to the application.”[8] (emphasis added)

18. So far, the authorities discussed above concerned the inferior court and tribunal, what then is the position of a party who played no part in the proceedings like the Director in the present case.

19. In this respect, the case of Re Lee Shiu Ting [9] may be a useful reference. The Full Court in Hong Kong applied the principle set down by Lord Parker and refused to grant costs against the prosecution.

20. That case was an application for an order of certiorari to quash an order of disqualification from holding a licence to drive any type of motor vehicle under s.4 of the Motor Vehicle Insurance (Third Party Risks) Ordinance.

21. Huggins J concluded that the magistrate erred in failing to specify the period of disqualification. His Lordship refused to order costs against the prosecution who did not oppose the application for certiorari. His Lordship agreed with the comment of Lord Parker in R v Liverpool Justices, Ex parte Roberts, [10]

“So far as costs against the magistrates are concerned, it has been the practice not to grant costs against magistrates or tribunals merely because they have made a mistake in law but only if they have acted improperly, that is to say, perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance. In the present case the Court is satisfied that the denial of justice here was a pure mistake and was not a flagrant instance; indeed, counsel has not asked for costs against the magistrates. He asks for costs only against the prosecution. So far as that is concerned, it is the recollection of all the members of this court that the general practice is not to award costs against a party who does not appear to resist an application of this sort. That is not to say that there may not be cases where the court thinks it right to order that that party to pay costs if, for instance, he has clearly contributed to the error giving rise to the application. Accordingly, following that usual practice, the court in the present case refuses costs." (emphasis added)

22. In my view, the conduct of the party, who did not appear to oppose the application, must be “materially contributed to the error” or “clearly contributed to the error” before it would be liable to pay costs.

23. In the present case, the adjudicator dealt with the application for late filing on paper. The Director did not participate in the decision albeit that it had provided some misleading information which might have contributed to the TCAB decision.

24. It is essential, before applying the principles discussed above, to examine the background facts leading to the TCAB decision as follows:

(a) In the affirmation in support of his leave application, the applicant had filed a copy of the decision of the Director which had a chop on it. This chop showed that the applicant received the decision from the PSO lawyer on 13/4/2018. The applicant had signed to confirm. There was the company chop of Eric Chan & Co on it. The applicant was given a copy of this decision by the PSO lawyer on 13/4/2018. It was unclear why did he not attach it to the NOA.
(b) In the 3^rd affirmation of the applicant, he produced an envelope in ‘exhibit J-17’ which contained the decision of the Director sent to the PSO lawyer. This envelope must be in the possession of the PSO lawyer. The postal chop is conclusive that the decision of the Director was only posted on 9/4/2018.
(c) The applicant also produced in the same affirmation a covering letter from the Director to the PSO lawyer (‘exhibit J-18’). Two chops on this letter are significant. One evidencing that the PSO lawyer received the decision of the Director on 11/4/2018. The other evidencing that the decision of the Director was explained to the applicant on 13/4/2018.
(d) There is no evidence whether the applicant was given a copy of this letter and the envelope (‘exhibit J-17 and J-18’). Those advising him might not be aware of the significance of these exhibits at that stage.
(e) There were subsequent correspondences between the Director of Legal Aid and the PSO lawyer. It is only necessary to refer to the letter from the PSO lawyer (‘exhibit J-30’). It appeared in paragraph 6 of the letter that the PSO lawyer had alerted the applicant to be cautious about the niceties on the computation of the time limit.

25. It is clear from the facts above that the applicant was aware of the possible argument in relation to the time limit. He was in possession of a copy of the decision of the Director which demonstrated delay in the mail.[11] Unfortunately, he might not be given a copy of ‘exhibit J-18’. It did not occur to him to ask for a copy and attached to his NOA.

26. This was compounded by the limited enquiry made by the TCAB. In this aspect, I agree with Deputy Judge Pang that the adjudicator should have made more enquiries given the short delay. This duty to make further enquiry is fact sensitive. It should not create extra burden on the TCAB in general.

27. This is not a fault finding exercise. I echo the comment of the Court of Appeal in Orrico Philippe thateven the most conscientious and competent decision-maker would have made mistakes which with the benefit of hindsight, can be described as obvious or blatant.[12]

28. Having considered the above analysis, I do not think the Director’s misleading information to the adjudicator is flagrantly improper or clearly contributed to the error of the TCAB decision.

29. In the circumstances, I make no order for costs.

(P. Li)
Deputy High Court Judge

Mr Francis Ngan, instructed by KCL & Partners, for the Applicant

Mr Rex Cheung, Senior Government Counsel, of the Department of Justice, for the Interested Party

[1] Dated 3/4/2018.

[2] The Department of Justice informed this court that the applicant has passed away on 17/12/2021. However, since the cause of action is still valid, this court would proceed to determine the costs application.

[3] Pilot Scheme Office for provision of public funded legal assistance for non-refoulement claimants.

[4] Affirmation of the applicant in support of the leave application dated 11/2/2019, attachment ‘B’.

[5] Senior Government Counsel.

[6]Orrico Philippe v Municipal Services Appeals Board [2015] 4 HKLRD 111, §17. The Court of Appeal cited with approval the comment of Brooke LJ in R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739, §47.

[7] See note 6 above, at §§40—42.

[8]R v Liverpool Justices, ex parte Roberts [1960] 1 WLR 585, per Lord Parker CJ at page 2.

[9] [1966] HKCU 58, pages 2-3.

[10] Ditto.

[11] See paragraph 24(a) above.

[12]Orrico Philippe v Municipal Services Appeals Board [2015] 4 HKLRD 111, §42.

HCAL 385/2019

[2020] HKCFI 2526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 385 OF 2019

BETWEEN

	J	Applicant
	and
	Torture Claims Appeal Board	1^st Respondent
	WONG Chun-kong qua Adjudicator of the Non-refoulement Claims Petition Office	2^nd Respondent
	and
	Director of Immigration	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 C P Pang:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

Introduction

1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non refoulement Claims Petition Office (“the Board”) refusing to allow late filing of the Notice of Appeal against the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim of non-refoulement protection.

2. The facts of the case and the basis for the Applicant’s non-refoulement claim can be briefly stated. The Applicant is a national of Gambia. In January 2013, the Applicant acted as a middleman in the sale of a piece of land. After he obtained a part-payment from the purchaser and passed it to the owner’s representative, the land was however sold to somebody else. As he failed to secure the land for the purchaser, the purchaser and his brother threatened to kill him if he did not return the money or the land. On 21 September 2014, the Applicant in fear of his safety left Gambia for Senegal which is adjacent to Gambia. On 23 September 2014, the Applicant left Senegal and arrived in Guangzhou, China on the next day. On 30 September 2014, the Applicant lawfully entered Hong Kong on the strength of his Gambian passport. He was granted permission to stay for 3 months as a visitor. He did not leave Hong Kong when his permission to stay expired on 29 December 2014. On 2 January 2015, the Applicant surrendered to the Immigration Department.

Non-refoulement Claim

3. By a written representation dated 13 February 2015, the Applicant lodged with the Director of Immigration a non-refoulement claim.

4. The Director subsequently referred the Applicant to Pilot Scheme Office for Provision of Public-funded Legal Assistance for Non-refoulement Claimants (“PSO”) so that legal assistance would be provided to the Applicant. PSO assigned a lawyer to the Applicant (“the PSO Lawyer”).

5. On 28 March 2018, the Applicant, accompanied by the PSO Lawyer, attended a screening interview with the Immigration Department in respect of his non-refoulement claim.

The Director’s Decision

6. By a ‘Notice of Decision’ dated 3 April 2018, the Director rejected the Applicant’s non-refoulement claim (“the Director’s Decision”). It is unnecessary to state the detailed reasons for the purpose of this application, suffice it to say that the Director found the level of risk of harm faced by the Applicant was low. The Director’s Decision was sent to the PSO lawyer by registered post.

7. On 13 April 2018, the Applicant attended a conference with the PSO Lawyer and was given a copy of the Director’s Decision.

Appeal/ Petition to the Board

8. On 25 April 2018, the Applicant, acting in person, submitted his completed Notice of Appeal/ Petition (“the Notice of Appeal”) to the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Appeal”).

9. Section 5 of the Notice of Appeal concerns application for late filing of the Notice of Appeal. Under that section, the Applicant stated that: -

“I receive it on the 13^th April 2018”

10. By a letter dated 16 November 2018, the Broad requested the Director ‘to provide information about the date and manner of service of the Notice of Decision dated 28 March 2018 on [the Applicant’s] legal representative’ (exhibit J-25 of the 3rd affirmation (“the affirmation”) of the Applicant). Pausing here, it is to be noted that the Director’s Notice of Decision should be dated 3 April 2018.

11. By a letter dated 20 November 2018, the Director replied to the Board stating that the “[Director’s] Notice of Decision dated 3 April 2018 was delivered to [the Applicant] via registered post to [the PSO Lawyer] on the same day…” (exhibit J-26 of the affirmation).

The Board’s decision

12. By a Decision dated 21 January 2019, the Board without a hearing refused the Applicant’s application for “late filing of the Notice of Appeal” (“the Board’s Decision”). The presiding adjudicator of the Board was Mr WONG Chun-kong (“the Adjudicator”).

13. For the purpose of the present application, I will adopt the Adjudicator’s reasons for refusal as summarized in the amended Form 86 prepared by solicitors, assigned by the Director of Legal Aid, now acting for the Applicant:-

“The Adjudicator’s reasons for refusal may be summarized as follows:-
35.1. The Applicant applied for late filing of the Notice of Appeal (dated 25 April 2018), which was received by the Board on the same day, against the Director’s Decision (dated 3 April 2018), which was contained in the letter dated 3 April 2018 addressed to the Applicant, care of the PSO Lawyer;
35.2 The Notice of Appeal was served by registered post on the PSO Lawyer on 3 April 2018;
35.3 The regime governing late filing was strict. The Applicant had a duty to comply with the time limit. If he failed, ‘it matters not whether the delay is for a few days (like the case here) or whether it is much longer’. He was required to establish special circumstances which would make unjust a refusal to allow late filing;
35.4 The Board must consider and decide, as a preliminary decision without a hearing, the application for late filing of the Notice of Appeal. The Applicant, however, did not provide any documentary evidence;
35.5 Given the Director’s Decision ‘was dated and served on [the PSO Lawyer] by registered post on 3 April 2018’, the deadline for filing the Notice of Appeal should fall on 20 April 2018. The Notice of Appeal was dated and filed on 25 April 2018. It was late for 5 days;
35.6 The Applicant stated in the Notice of Appeal that he had received it on 13 April 2018. As such, he was purportedly given actual notice of the Director’s Decision on 13 April 2018 and ‘it took him 12 days to have the Notice of Appeal prepared and filed with [the Board]’;
35.7 The Applicant appeared to allege that there had been delay on the part of the PSO Lawyer. Even ignoring the alleged 10-day delay, the Board still had to consider whether or not the action taken by the Applicant since his actual receipt of the Director’s Decision amounted to special circumstances which would make unjust a refusal to allow late filing;
35.8 Other than the allegation that he was given the Director’s Decision on 13 April 2018, the Applicant provided no explanation as to why he took another 12 days to have the Notice of Appeal prepared and filed with the Board;
35.9 The fact that the Applicant completed Section 5 of the Notice of Appeal clearly indicated that he realized that he was late. An explanation by him was important. He provided no information or explanation as to what he did after he had actual notice of the Director’s Decision;
35.10. The non-refoulement claim must have been a very serious and important matter for the Applicant. He would have been cautious and ought to have ensured that the Notice of Appeal ‘was prepared and filed at the very first opportunity upon receipt of the same and provided information/ explanations’;
35.11 There was unjustified delay on the part of the Applicant after receipt of the Director’ Decision in preparing and filing the Notice of Appeal; and
35.12 The Applicant had failed to provide sufficient information or explanation and documentary evidence to enable the Board to find that there were special circumstances which would make unjust a refusal to allow late filing of the Notice of Appeal.”

Application for leave to apply for judicial review

14. The Applicant, then acting in person, filed his Form 86 on 11 February 2019 to seek leave to apply for judicial review against the decision of the Board. He was subsequently granted legal aid. With leave of the court, the Form 86 was amended. The grounds set out in the amended Form 86 can be summarized as follows.

Ground 1: “Illegality: Error of Fact/ Error of Law/ Misdirection in Law”

15. The complaint in this ground is that the Board’s Decision is liable to be quashed because the Adjudicator erred in counting the appeal period and hence the deadline for filing the Notice of Appeal. The information given by the Director of Immigration in his letter dated 20 November 2018 that the Director’s Decision was delivered to the PSO lawyer on 3 April 2018 is wrong. The Director’s Decision was only served on the PSO lawyer on 11 April 2018 by registered post. The 14-day appeal period only started to run on 11 April 2018. The Applicant was not late in filing the Notice of Appeal on 25 April 2018 as a matter of law.

Ground 2: “ProceduralIrregularity/ Error of Law/ Misdirection in Law”

16. It is also the Applicant’s case that the Board’s Decision is liable to be quashed because the Adjudicator erred in the following: -

(1)     As a matter of procedural fairness, the Adjudicator, when determining the date of the deadline, erred in refusing or failing to make sufficient inquiry in respect of when the Applicant or the PSO Lawyer received the Director’s Decision and the Notice of Appeal;
(2)     The Adjudicator erred in considering that length of delay as immaterial;
(3)     The Adjudicator erred in interpreting section 37ZT of the Ordinance when he considered the alleged late filing of the Notice of Appeal; and
(4)     As a result, the Adjudicator erred in failing or refusing to conduct an oral hearing in respect of the alleged late filing of the Notice of Appeal.

17. For these reasons, the Applicant seeks remedies for, inter alia, an order of certiorari to bring up and quash the Decision dated 21 January 2019 of the Board.

Discussion

18. The Applicant only asks for an oral hearing if leave to apply for judicial review is not granted on paper. As I am minded to grant leave, the application is determined on the papers without a hearing.

19. Bearing in mind the court is only considering at this stage whether leave should be granted for the Applicant to apply for judicial review, I will only give brief reasons for granting leave.

20. There are two main issues in the present application. First, whether the Notice of Appeal against the Director’s Decision was filed with the Board within the statutory time limit of 14 days after the Director’s Notice of Decision was given to him (see s 37ZS(1) of Immigration Ordinance). If so, the Applicant could as of right appeal that decision. Secondly, if the Notice of Appeal was filed out of time, whether the Board’s refusal to allow late filing of the Notice of Appeal was unreasonable.

21. The Adjudicator found that the Notice of Appeal (dated and filed with the Board on 25 April 2018) was filed “late for 5 days” as he observed that the notice of decision of the Director was served on the legal representative of the Applicant by registered post on 3 April 2018. It appears that his computation of time was based on information given by the Director that the Director’s Decision was delivered to the Applicant via registered post on 3 April 2018 (exhibit J-26 of the 3^rd affirmation of the Applicant). On that basis, the Adjudicator considered that the last day for the Notice of Appeal to be filed should be no later than 20 April 2018, presumably applying the statutory presumption of time for service by post stated in s 37ZV (3) of the Immigration Ordinance.

22. There are now documents exhibited in the 3^rd affirmation of the Applicant showing on its face that the Director’s Notice of Decision was only sent by the Director by registered post on 9 April 2018 and was received by the Applicant’s legal representative on 11 April 2018 (see exhibits, in particular, J-16 to J-19 of the 3^rd affirmation of the Applicant). On the evidence produced, it is reasonably arguable that the Director’s Decision was given to the Applicant on 11 April 2018 and hence the deadline for filing of the Notice of Appeal fell on 25 April 2018. As the Notice of Appeal was filed on 25 April 2018, there was no late filing.

23. Even assuming that the Notice of Appeal was indeed filed 5 days late, the delay could not be said to be substantial or excessive. Length of delay was a relevant factor to be taken into account when the Adjudicator considered whether or not special circumstances existed that it would be unjust not to allow the late filing of the Notice of Appeal: s 37ZT(3). In the present case, the short delay should be a weighty factor in favour of the Applicant. With such a short delay and when the Applicant stated in the Notice of Appeal that he only received the Director’s Notice of Decision on 13 April 2018, it is arguable that the Adjudicator should have made more inquiries about the reason for the delay to consider whether special circumstances existed in his case to justify late filing. If there was no fault whatsoever on the part of the Applicant, he should not be penalized. Furthermore, the Adjudicator’s decision did not demonstrate that he took into account the merit of the Applicant’s claim. He emphasized in his decision that “The regime governing late filing is strict…it matters not whether the delay is for a few days (like the case here) or whether it is much longer…”. In my view, in the special circumstances of the case, it is also arguable that a reasonable decision maker would have considered the merit of the Applicant’s claim as well. Therefore, even if the Notice of Appeal was filed 5 days late, it is reasonably arguable that the Adjudicator’s refusal to allow late filing was Wednesbury unreasonable.

Conclusion

24. For the reasons given, the two grounds of review are both reasonably arguable. The threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung [2007] 10 HKCFAR 676 has been met.

25. Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision based on the grounds relied upon by the Applicant in the amended Form 86, and direct that he shall file an originating summons within 14 days, and to serve a copy with all the relevant documents on the Board as respondent and the Director as interested party.

Dated 8 October 2020

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

The Applicant is represented by Messrs KCL & Partners

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

Notesfor 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 8 October 2020 J 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 8 October 2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11339/18/4/349/GA93 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1250/18 (Formerly RBCZ 10588/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

J v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER [Decision on Leave Application]

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