Krubally Fabakary v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 444/2018

[2020] HKCFI 641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 444 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Gambia who arrived in Hong Kong on 15 June 2014 with permission to remain as a visitor up to 13 September 2014 when he did not depart and overstayed, and on 19 January 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Gambia he would be harmed or killed by the Gambian government for political reasons. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Gambia. After leaving school he worked in the hospitality sector before starting his own sports shop business, and joined the political party United Democratic Party (“UDP”) as a recruiting member to oppose the ruling Alliance for Patriotic Reorientation and Construction Party (“APRC”) by participating in demonstrations against the government, and between 2012 and 2014, he also worked as an undercover reporter for the online newspaper Kibaaro News which promoted freedom, justice and equality in Gambia by providing them with sensitive information about the Gambian government’s oppressing activities against its dissidents.

3.One day in February 2014, the Applicant was arrested by several agents of the National Intelligence Agency (“NIA”) and was detained in their detention center overnight during which he was interrogated as to his activities for UDP and the Kibaaro News, and before he was eventually released, he was warned not to continue with his political activities or else he would risk being arrested again with more serious consequences.

4.Upon his release, the Applicant became fearful for his safety, and therefore fled to Senegal where stayed for about one month when he continued to work for Kibaaro News before returning to Gambia, but when he was later told by some UDP members of news that the government was looking to arrest him again, the Applicant departed Gambia again in May 2014 for Senegal, and from there he travelled first to China, and then to Hong Kong where he overstayed, and later when he heard of the mass arrests of dissidents in Gambia after a failed coup in December 2014, he surrendered to the Immigration Department and sought non-refoulement protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 24 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 Claim”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Gambian authorities upon his return to Gambia as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he was being pursued by the Gambian government, that there are on-going reforms in Gambia that the government has taken practical steps to monitor the conduct of its police and improve their effectiveness and the protect the rights of its citizens, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Gambia with a large population of 2 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Gambia away from his home district in large cities such as Brikama where it would be safe for him to relocate and re-establish his life and work there.

7.On 14 February 2017 the Applicant filed his notice to the Torture Claims Appeal Board (“The Board”) to appeal against the Director’s decision, but he was then out of time with his Notice of Appeal, as section 37ZS of the Ordinance requires that the notice of appeal must be filed within 14 days after notice of the Director’s decision has been given to an applicant unless late filing is allowed by the Board.

8.In his Notice of Appeal the Applicant gave his reasons for being late in section 5 as follows:

“ I don’t received any refusal letter from my address. But then they sent it to my former address which is on my immigration paper. I have change address and I gave to then in my time of interview. Moreover my case officer said they do call me but I don’t received and call from them too. Meanwhile I ask my case officer told me to go back to immigration to ask of refusal letter and I do. Then here I am, just received it on last week Thursday in evening.” (sic)

9.In section 2 of his Notice the Applicant also provided his grounds of appeal against the Director’s decision.

10.By its Notice of Decision dated 8 March 2018, the Board refused to allow the Applicant’s late filing of his Notice of Appeal upon finding that the 14-day period for him to do so plus 2 days for service would take the filing date up to 12 December 2016, that he only did so on 14 February 2017 which therefore put his delay at more than 2 months for which he failed to provide a sufficient answer or explanation, and that it was not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance had been shown.

11.On 19 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Irrationality in failing to consider the concept of state acquiescence;

(2)  Procedural impropriety in making insufficient inquiry;

(3)  Failure to provide adequate reasons as to decision made;

(4)  Procedural impropriety/unfairness in failing to investigate into the country of origin information of Gambia;

(5)  Irrationality in failing to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)  Irrationality in failing to consider a consistent system of human rights violations;

(7)  Irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(8)  Procedural impropriety in failing to call for psychological and/or psychiatric reports or evaluations;

(9)  Procedural impropriety in applying the incorrect standard of proof;

(10)  No reasonable basis for rejecting the applicant’s claim credibility;

(11)  Failure to consider the extended form of state acquiescence;

(12)  Failure to fully consider the COI reports in assessing risk to the Applicant;

(13)  Irregularity of the decision-maker being a different person than the interviewing officer; and

(14)  No proper basis for consideration of internal relocation.  

12.These are however just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or in fact why any of them would be relevant to the Board’s refusal to allow the late filing of his appeal. Nevertheless, given the serious implications of the Board’s decision on the Applicant, high standards of fairness require that it be considered by the court with rigorous examination and anxious scrutiny, of which I shall first refer to the statutory requirements which the Board is to undertake when dealing with the late filing of notice of appeal under section 37ZT(2) of the Ordinance as follows:

“ The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of –

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.”    

13.And subsection (3) provides that:

“ If the Appeal board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.”

14.In arriving in its decision, the Board stated that it was guided by the legal principles laid down by the UK Court of Appeal in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 which held that such application should be approached by the decision-maker in three stages as follows [14]:

“ (i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.

(ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.

(iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders. As listed in para. [35] of the judgment in Denton:

‘ Thus, the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it …’ ”

15.The Board, in applying the relevant legal provisions to the Applicant’s application, gave the following reasons in its decision for refusing his late filing of his Notice of Appeal:

“ 20. The Board does not accept that the Appellant has provided a sufficient answer to the late filing of his appeal/petition. It is the responsibility of the Appellant to inform the Director of Immigration of his whereabouts and the statute provides that it is conclusively presumed to have been served when sent to the last known address of the Appellant. The delay in appealing is over two months and this is an extraordinary delay. The Appellant does not explain why, on receiving the Notice of Decision when he said he did, the Appellant took a further week to lodge his appeal. The Board is not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.”

16.While the Board was on the evidence before it entitled not to accept the Applicant’s explanation of not receiving the Director’s Decision in the mail to his last known address, and to find in the circumstances that a delay of more than two months with his Notice of Appeal was a serious or significant breach, but it seems that the Board had failed to proceed to conduct the third-stage enquiry to evaluate all the circumstances of the case alluded to in its Decision, or as required by section 37ZT(2)(b) of the Ordinance to take account of any other relevant matters of fact within its knowledge including the merits of the appeal, as it has been so held by the Court of Appeal in Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019 when Hon Lisa Wong J in giving judgment of the court stated:    

“ 23. Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16] – [20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.” 

17.In the premises and for the reasons given, I am of the view that it is reasonably arguable that the Board failed to take account of the merits of the Applicant’s appeal in refusing his late filing of the Notice of Appeal, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan.

18.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s Decision, and in accordance with Order 53 rule 5 of the Rules of the High Court, Cap. 4A, he is to file and issue an originating summons within 14 days from the date of this decision based on the said ground as above, and to serve a copy together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 13^th day of May 2020. 

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