Nkwo Ikechukwu Leonard v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1701/2018

[2019] HKCFI 1548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1701 of 2018

BETWEEN

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 Woodcock:

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Nigerian national who arrived here in Hong Kong and was permitted to remain as a visitor for 14 days on 17 February 2013.  He overstayed from 4 March 2013 and was arrested by the police for overstaying on 3 May 2013.  On 14 March 2014 the applicant lodged a non‑refoulement protection claim.  That claim was rejected by the Director of Immigration (“the Director”) on 1 September 2016 and 29 June 2017.  The applicant should have filed his notice of appeal/petition to the torture claims appeal board (“TCAB”) on or before 17 July 2017.  He filed that notice of petition late, about 6 months late on 15 December 2017.  

2.Because the notice of appeal was not filed in time, the adjudicator of the TCAB made a determination of late filing of the petition pursuant to para 9 of the practice and procedural guide of the administrative non-refoulement claims petition scheme.  On 8 June 2018, the adjudicator made a determination that the late filing of the notice of petition was disallowed pursuant to the petition guide.  The applicant then filed a notice of application for leave to apply for judicial review on 21 August 2018; the proposed respondent is the TCAB and the relief sought is to overturn the decision of the TCAB.  The applicant did not request an oral hearing and I am now considering his application on the papers.

3.In an application for leave to apply for judicial review, the court is to consider whether the adjudicator has made any error of law or conducted procedures whilst failing to comply with a high standard of fairness as required by law as explained by the Court of Final Appeal in Secretary for Security v Saktheval Prabakar (2004) 7 HKCFAR 187.  The applicant’s claim and grounds need to show that his application is reasonably arguable and will enjoy a realistic prospect of success as proposed in Peter Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676. I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application.

TCAB decision

4.The applicant has filed some documents with his notice of application for leave to apply for judicial review.  He has filled out a notice of appeal/petition form normally intended for the TCAB appeal/petition however, I will consider its contents for the purposes of this application.

5.In that form there is grounds of appeal intended for the TCAB adjudicator; they set out grounds against the decision of the Director. There are some supporting documents and they include articles purported to be news articles of a woman fainting at a demonstration protesting against the disappearance of a leader of the indigenous people of Biafra.  The second article concerns an attack on villagers of 11 villages by Fulani herdsmen that killed 86 and burnt down 50 houses.

6.It is unclear the relevance of those articles since the applicant’s claim is based on a fear of being harmed or killed by his paternal uncle who coveted his father’s land which the applicant was due to inherit from his father in the future.  His father is still presently farming that land but the applicant describes his fear of his uncle which stemmed from death threats and threats of black magic.

7.In that same form the applicant explains why his notice of appeal was filed nearly 6 months late.  He says he needed an interpreter and his lawyer did not explain to him the “usefulness of an interpreter”.  Secondly, he was sick then but gives no details of what illness and during what period of time.  Thirdly, he said he wanted to gather more documents as evidence to support his claim.  Fourthly, he said his living environment delayed his correspondence.  Fifthly, he wanted legal advice.  Lastly, he said “your” letter, I assume that means the Notice of Further Decision of the Director was late through the post but gives no other details, such as how late.

8.Those are not reasons that he gave the TCAB when he filed his late notice of appeal.  A reading of the TCAB adjudicator’s decision confirms that he did not give any of those six reasons to the TCAB.  In para 14 of the adjudicator’s determination, he repeats the applicant’s reasons for filing a late notice of appeal and describes it as incomprehensible.  I will quote the applicant’s reasons given, he wrote - “I do not know that place write because my appeal for the mistake for consoling this based on the fact I will have not castle the paper I am sorry for that pardon me for that officer I aspect me for that sir thank.  Therefore, I humbly appeal that my case is reviewed because of not know this”.

9.The adjudicator considered para 9 of the petition guide.  If a notice of appeal/petition is filed late, it must include an application for late filing, which must include a statement of reasons for failing to file on time; and be accompanied by documentary evidence in support. The adjudicator found that there was no such application, no statement of reasons nor any documentary evidence.

10.Para 9.2 of the guide provides that the Board must decide as a preliminary decision without a hearing whether the application for late filing of the notice of appeal/petition will be allowed.  The adjudicator was aware that the same section makes clear that the Board can only take into account matters set out in the guide and those are the statement of reasons stated in the application for late filing, any accompanying documentary evidence relied upon in support of those reasons and lastly any other relevant matters of fact within the knowledge of the Board.

11.The adjudicator was also guided by legal principles stated in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122, in particular para 14 of the judgement which gives guidance on how to approach an application for extension of time.  He sets out para 14 of that judgement in his decision.

12.The adjudicator took from the authority principles that litigation must be conducted efficiently and at proportionate cost, and that compliance with rules and practice directions must be enforced legal principles applicable here in Hong Kong.  He found the petitioner’s reasons for being late incomprehensible and undecipherable.

13.The adjudicator took into account that the notice of further decision from the Director was served as it was delivered to the applicant’s residential address on 29 June 2017.  He took into account that the applicant had received 12 years of formal education and had worked as an office assistant in a motor company and was therefore familiar at some level with administration.  He was not an uneducated man.

14.The delay of about six months was a delay the adjudicator found extraordinary and was not satisfied that there were any special circumstances to allow for late filing.  He came to that conclusion after considering section 37ZT(3) of the Immigration Ordinance.

Leave to apply for judicial review

15.In considering this notice of application for leave to apply for judicial review I am to consider whether the adjudicator has made any error of law or conducted procedures whilst failing to comply with a high standard of fairness as required by law in his determination of the applicant’s late filing of the notice of appeal.

16.The applicant gave him no reasonable explanation for the delay.  The reasons that the applicant now submits would support an application for late filing cannot be considered by this court in this application nor would I consider the TCAB adjudicator’s determination afresh.  This is not a rehearing of his application.

17.I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application.  The adjudicator’s determination was based on the rules of procedure and supported by an authority which validated his determination.

18.There are no grounds that show there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19.In my judgement, there are no grounds that are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676, paras 14‑17.  I refuse this application for leave to apply for judicial review.

Dated the 24^th day of June 2019

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