Case Document

100%Judiciary

HCAL 136/2018

[2019] HKCFI 1048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 136 of 2018

BETWEEN

	Daramola Loukman Mouniru	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 the Applicant being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1. an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 13 July 2017 refused; and

2. leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.The applicant is a 42-year-old man with dual citizenships of Sierra Leone and South Africa who arrived in Hong Kong on 26 November 2015 with permission to remain as a visitor up to 26 December 2015 when he did not depart and instead overstayed until 28 December 2015 when he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to South Africa he would be harmed or killed by the xenophobic people there, and that if he returned to Sierra Leone he would be harmed or killed by supporters of his father’s former rival political party. He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Bo District, Sierra Leone until 1993 when he and his family fled from death threats from supporters of his father’s rival political party Sierra Leone People’s Party (“SLPP”) to South Africa where he worked in Bloemfontein and was subsequently granted refugee status but was frequently being subjected to constant discriminations, harassments and intimidations from local people with xenophobic against him and fellow foreigners.

3.Although the applicant was subsequently granted South African citizenship in 2012, he continued to feel being discriminated and harassed as a foreigner, and in April 2015 xenophobic attacks became worse and more frequent in Bloemfontein that his brother was attacked and his grocery store was burnt down by some local thugs, and one day in July 2015 when his business partner was abducted and beaten up by the local thugs, the applicant felt that it was no longer safe to remain in South Africa, and so on 26 September 2015 he departed for Hong Kong in transit for New Zealand, but when he was denied entrance for New Zealand he went to Macau and then Taiwan before returning to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 20 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 22 November 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

5.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the local xenophobic people in South Africa or the SLPP people to the applicant upon his return to South Africa or Sierra Leone as low or unlikely due to the absence of past ill-treatment from them, that there is no reliable evidence that the applicant had been targeted for harm or persecution in South Africa, that it is just wild speculation that the SLPP people would still have any adverse interest in him after all these years, that in the absence of any official involvement that state or police protection would be available to the applicant in either South Africa or Sierra Leone if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in South Africa with a large population of 53 million people spread across a vast territory of more than 1.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of South Africa away from his home district in large cities such as Cape Town or Johannesburg where it would be difficult if not impossible for his perceived enemies to locate him.

6.On 6 December 2016 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 18 May 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 13 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

7.In its decision the Board accepted the applicant’s account of events in Sierra Leone which led to his flight to South Africa some 25 years ago, but given the verification by reliable COI of fundamental and durable changes which had taken place in Sierra Leone since with no reports of serious problems arising from political activities of SLPP in which the applicant never had any involvement in the events which precipitated his flight as a young man, and without any involvement in Sierra Leone politics in the intervening period that there is no reason whatsoever to suggest that he would experience any serious harm as a result of his father’s political activities some 25 years ago, and concluded that the applicant had not established any real risk of any form of harm upon his return to Sierra Leone, and hence it would not be necessary to assess whether he would face any risk in South Africa.

8.On 29 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would be at risk and in danger in his home country and asked that he be allowed to stay in Hong Kong.

9.The applicant was however by then already late with his 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 date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

10.In the applicant’s case, the three-month period within which he was to file his Form 86 expired on 13 October 2017, and hence he was late by more than 3 ½ months, 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

11.A delay of more than 3 ½ months must be considered as substantial or excessive, for which the applicant did not provide any explanation, and in fact he did not even make any application for extension of time, and more importantly as noted above he did not put forward any arguable ground or identify any legal error or procedural unfairness in the Board’s decision, and in the absence of which I am unable to see any merits or prospect of success in his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

13.In the applicant’s case, the Board rejected his claim essentially on the basis that fundamental and durable changes have since taken place in Sierra Leone over the past 25 years since the applicant’s departure that there is nothing to suggest that he would be at any risk arising from his father’s past political involvement upon his return to Sierra Leone,and in the absence of any legal error or procedural unfairness in the Board’s decision being clearly and properly identified by the applicant, I do not find any arguable basis to challenge such findings of the Board.

14.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

15.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 3^rd day of October 2019.

(NG Ka-wing)
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 his 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 3^rd October 2019 Daramola Loukman Mouniru 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 3^rd October 2019 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 5407/16/12/54/ZAF2 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2454/16 (formerly RBCZ/11179/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)