Re Madbar Abdul Salam

Re Madbar Abdul Salam
[2019] 3 HKLRD 725, [2019] HKCA 640
Court of Appeal
Civil Appeal No 57 of 2019
Yeung ACJHC and Lisa Wong J
28 May, 4 June 2019

Administrative law — Torture Claims Appeal Board — non-refoulement claim — refusal of Board to allow late filing of notice of appeal from rejection of claim — whether leave to apply for judicial review against Board’s decision to be granted 

Civil procedure — appeal — Torture Claims Appeal Board — in deciding whether to allow late filing of notice of appeal from rejection of non-refoulement claim, Board should look at merits of appeal (albeit on paper without hearing) regardless of procedural breaches or lack of explanation — observations on Court of Appeal’s discretion to allow new grounds of appeal to be canvassed in interest of justice

His non-refoulement claim having been rejected by the Director of Immigration, X sought to appeal against such refusal to the Torture Claims Appeal Board (the Board). But he failed to file his notice of appeal in time. Without an oral hearing, the Board refused late filing. X sought the High Court’s leave to apply for judicial review of the Board’s decision refusing late filing. After an oral hearing, the High Court refused leave to apply for judicial review. X then appealed to the Court of Appeal against such refusal.

Held, allowing the appeal to grant leave to apply for judicial review, that:

  1. The Board had a discretion to allow late filing of a notice of appeal if it was satisfied that, by reason of special circumstances, it would be unjust not to do so. Where a notice of appeal was not filed in time, the Board was mandated to make a preliminary decision, without a hearing, whether or not to allow late filing. In so deciding, the Board was to take into account the length of the delay, the explanation for the delay and “any other relevant matters of fact within the knowledge of the Board”. Even where there was a serious or significant breach for which no good reason was given, the decision-maker should move to evaluate all the circumstances of the case that she or he knew of. In identifying what circumstances were relevant, it was imperative to bear in mind that the discretion to allow late filing was exercisable when it would be “unjust” not to do so by reason of “special circumstances” (Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 applied). (See paras.23–26.)
  2. Although the Board stated that it had considered/evaluated all the circumstances, there was no reference in its decision to the merits or otherwise of the non-refoulement claim. And the Deputy Judge expressly took the view that the merits need not or should not be considered. But it was arguable that it would be unjust not to allow late filing where the appeal to the Board was meritorious. And the Board should have looked at the merits or otherwise of the appeal (albeit on paper and without a hearing) regardless of the procedural breaches or the lack of explanation therefor (Re Khan Kamal Ahmed (CACV 563/2018, [2019] HKEC 1011), Re Qasim Ali (CACV 547/2018, [2019] HKEC 1118) applied). (See paras.27–28.)
  3. For those reasons, the intended application was reasonably arguable, meeting the threshold for the grant of leave to apply for judicial review (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 applied). (See para.30.)

Appeal

This was an appeal against the decision of Deputy Judge Josiah Lam refusing leave to apply for judicial review to quash the decision of the Torture Claims Appeal Board refusing late filing of the applicant’s notice of appeal against the rejection by the Director of Immigration of his non-refoulement claim. The facts are set out in the judgment.

[Editor’s note: The Court of Appeal indicated (in para.30) that it was mindful that how they went about deciding the appeal in the applicant’s favour was not exactly how he had put his case in his notice of appeal or submissions. They said (at para.31) that, without derogating from the principle that they consider the decision appealed against in light of the grounds of appeal raised, they had a discretion, not to be exercised lightly, to allow new grounds of appeal to be canvassed in the interest of justice.]

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