B v Torture Claims Appeal Board
Court of First Instance
Constitutional and Administrative Law List No. 80 of 2014
Thomas Au J
Administrative Law
6 January 2015

Administrative law – duty to give reasons – claim for non-refoulement – Torture Claims Appeal Board – no statutory duty to give reason for preliminary decision under s. 37ZT – fairness required Board to give reasons for refusal

Xs were a family from Sri Lanka and made non-refoulement claims through the Duty Lawyer Service (the “DLS”). Xs’ claims were rejected by the Director of Immigration on 29 November 2013. On 6 December 2013, Xs applied to the Torture Claims Appeal Board (the “Board”) for an extension of time to file Notices of Appeal on the ground that the duty lawyer assigned to represent them (the “Duty Lawyer”) was on maternity leave until the end of February 2014. By a letter dated 9 December 2013, the Board reminded Xs of the statutory procedure for filing a Notice of Appeal within 14 days under s. 37ZS(1) of the Immigration Ordinance (Cap. 115) (the “Ordinance”). On 10 March 2014, Xs through the DLS applied for the late filing of their Notices of Appeal under s.37ZT of the Ordinance. The Board refused Xs’ application (the “Decision”) on the ground that no special circumstances had been shown. Xs obtained leave for judicial review of the Decision on the ground that the Board had failed to give a reasoned decision under s.23(3) of Sch. 1A of the Ordinance; but was refused leave on the ground of unfairness, specifically that the Board had given tacit approval or a false sense of security in relation to an extension of time. The Board took a neutral stance in Xs’ judicial review. Section 23(1) of Sch.1A of the Ordinance provides that the Board “may confirm or reverse the decision” on an appeal against a decision referred to in s. 37ZR, and s. 23(3) provides that the Board “must give its decision with reasons in writing.”

Held, allowing the application, quashing the Decision and remitting it to the Board for reconsideration, that:

  • On a proper construction, s. 23 of Sch.1A of the Ordinance only imposed a statutory duty on the Board to give reasons for its decisions made under ss.37ZM and 37ZR, but not in relation to a preliminary decision under s.37ZT. Section 23(1) and (2) set out what the Board could do as a matter of power in making substantive decisions under ss.37ZM and 37ZR and the decisions referred to in s.23(3) and (4) were plainly those substantive decisions.
  • Fairness required the Board to give reasons for the Decision as it had the effect of finally disposing of Xs’ non-refoulement claims and making them liable to be removed. This entailed real and significant implications for Xs’ substantive right not to be subject to torture and their right to non-refoulement protection. The lack of a right to appeal against the Decision was also a factor pointing towards the need for reasons to be given.
  • However, the Decision should be quashed for lack of reasons as it only stated that the reasons given for the application for extension of time did not amount to special circumstances. It was not obvious as to why the Duty Lawyer’s maternity leave did not amount to special circumstances, in particular when it was generally the position that the assignment under the DLS was personal to the lawyer assigned but not the firm generally and that the Duty Lawyer had all along been involved in Xs’ claims.
  • It was doubtful whether the Court could entertain a challenge to the Decision on the ground of unfairness as leave was refused at the ex parte stage. If, after refusing leave on some of the grounds made in a Form 86, an applicant instead of appealing the said refusal of leave was permitted to argue the refused grounds again in the substantive hearing of the judicial review, it would not only make a mockery of the leave requirement, but would also be unfair to the respondent where he had filed evidence and was coming to the substantive hearing only to meet the grounds for which leave had been granted. Here, the Court would not reconsider the unfairness ground as Xs had shown no good reason why they should be allowed to rely on the refused ground in the substantive hearing and, in any event, this ground was not reasonably arguable.
  • The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings. Given the relative complexity of arguments raised by Xs in relation to whether the Board had a duty to give reasons for the Decision, and that these arguments were raised for the first time, it was not unreasonable for the Board to remain neutral in this application and to wait for the determination of the Court for any potential guidance. Accordingly, the Court would make no order as to costs in this application.

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