Case Document

100%Judiciary

HCAL 1022/2017

[2020] HKCFI 1425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1022 OF 2017

BETWEEN

	Camara Seydou	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	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 The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.This is an application for judicial review of the decision of the Adjudicator to refuse late filing of a Notice of Appeal. As the background to the matter is of relevance to that decision, the applicant’s immigration history and a short summary of his basis of claim have been included.

Procedural history

2.The applicant first entered Hong Kong lawfully on 29 December 2012, but was refused permission to land as he was arrested for trafficking in dangerous drugs. He pleaded guilty to that charge on 19 August 2013 and was sentenced to six years eight months’ imprisonment. He raised a non‑refoulement claim by way of written representation on 13 March 2017. His non‑refoulement claim form was submitted on 6 July 2017.

3.The applicant attended a screening interview on 26 July 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 2 August 2017. The applicant filed his Notice of Appeal/Petition, which was out of time, on 8 September 2017. The adjudicator of the Torture Claims Appeal Board, Mr William Lam (“the Adjudicator”), considered the application for late filing as a preliminary matter. The Adjudicator refused that application on 6 October 2017.

4.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review against the decision of the Adjudicator on 6 December 2017, on the basis that his decision was both unfair and unreasonable. He did not request an oral hearing. The matter was therefore considered on the papers.

Background

5.The applicant is a Malian national. He was born on 5 July 1977. He is single and a Christian. He is a carpenter by trade. When he was young, the applicant went to live in Nigeria when his mother remarried. However, when his step-father died and he experienced some difficulties in his village, he returned to Mali with his mother where he lived peacefully until 2011. In that year, he says he was assaulted by a group of Muslims, whilst working on a construction site in Korombana, for being a Christian. He required hospitalisation for his injuries which included stitches and his leg being put in plaster. He did not return to work in Korombana and remained in his home town of Bamako thereafter but could not find work because of the civil war. In 2012, he was offered work by someone name Mamadou, who arranged to obtain a passport for him. He was provided with the passport, which contained a China visa and asked to deliver something for Mamadou but before he could do so, the applicant was involved in a motor accident in which someone died. To avoid arrest, he fled to Burkina Faso and then to Algeria in order to enter Europe. However, the applicant was having difficulty finding a way to enter Europe and instead contacted Mamadou who asked him to return to Burkina Faso in order to enable him to deliver something on behalf of Mamadou to Macau. He met up with an agent of Mamadou in Burkina Faso, who handed him packets wrapped in clothes. He was told the packets contained gemstones. He says he put the packets “inside his body” and returned to Algeria. Two days later he says he “swallowed” the packets when he thought he was about to be arrested. He managed to swallow 33 packets but flushed a further 52 down the toilet. At this point, Mamadou threatened to kill the applicant if he failed to deliver the packets to Macau. He also threatened the applicant’s fiancée. The applicant therefore brought the packets to the Far East and eventually sought to enter Hong Kong whereupon he was arrested. He pleaded guilty to trafficking in dangerous drugs.

Decision of the Adjudicator

6.The filing of the Notice of Appeal was late. The applicant had 14 days to file a Notice of Appeal[1], the deadline for which was 18 August 2017. The Notice of Appeal was dated 8 September 2017. It was three weeks late.

7.The Adjudicator noted that the statutory regime for the late filing of the Notice of Appeal is strict. The burden was upon the applicant to establish his claim and to comply with the time limit[2]. The applicant provided an explanation for his failure to file his Notice of Appeal in time, which was that he had been suffering from bereavement after his mother’s death and that he had only been provided with the Decision on 8 August 2017.

8.The Adjudicator’s discretion to permit late filing of a Notice of Appeal is regulated under section 37ZT of the Immigration Ordinance, Cap 115. The Board may only take into account the statement of reasons provided in the application for late filing; the documentary evidence in support of the statement of reasons and other relevant matters of fact known to the Board. The Adjudicator may allow the late filing of the Notice of Appeal where it would be unjust to refuse his application[3].

9.The process of consideration of an application for late filing of a Notice of Appeal is carried out without a hearing[4] by way of preliminary decision. The Adjudicator set out subsections (1) to (4) of section 37ZT. In The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, 3 March 2016 the court alluded to a three‑stage approach which is:

(i)     The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. If the breach is serious or significant, the decision maker then considers the second and third stage.

(ii)     The second stage is to consider why the failure occurred. If there is a serious or significant breach and no good reason was given for the breach, then the decision maker moves 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. In considering all the circumstances of the case, the decision maker also takes into account (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice and directions and court orders.

10.The Adjudicator considered the explanation provided and noted that, even if the applicant had received the Decision on 8 August, he was still out of time and had provided no good reason for the late filing from that date. At that stage the Adjudicator noted “...the delay was due to the appellant’s procrastination. The law says that an applicant who sleeps on his rights may be barred from pursuing an appeal even though he may have a meritorious case”. That may be correct, but in this case it was open to the Adjudicator (and incumbent upon him in any event) to consider subsection (3) of section 37ZT and the guidance given at iii) above. That required the Adjudicator to consider all of the “matters of fact” i.e. circumstances of the case, known to him, so as to deal justly with the application. It was clear that this was not a meritorious case but the Adjudicator did not say that. He did not refer to the underlying claim at all. Nor did he weigh against that analysis the need for efficient and proportionate costs of litigation and the public policy benefits of enforcing compliance with rules of procedure and practice.

11.It is inherent in matters such as these that the relevant authorities do not lose sight of the underlying potential risk to claimants of danger to their life and liberty if refouled to their home state. No matter what his personal view of the appellant, it was incumbent upon the Adjudicator, in the exercise of his discretion, to take the merits of the applicant’s case into account at this stage, and, having done so, to explain why that case was not sufficient to warrant an exercise of discretion in his favour.

Grounds of review

12.There were no grounds of review save for a general allegation that the Adjudicator had been unfair and unreasonable. The applicant has not complained of any specific procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave. Given the comments above, the issue for this court on this application for leave, is twofold. Would the outcome have been any different if the Adjudicator had considered, as he should have done, the underlying merits of the claim? Will, simply remitting this matter back to him upon a successful application for judicial review, alter the final result in any way? It will not. It will merely cause further delay and expense. The applicant’s case was not accepted by the Director and, at its highest, does not meet the standard of proof placed upon him. It does not have any merit. As such, if remitted back, it is unlikely to alter the view of the Adjudicator not to grant leave.

Conclusion

13.In my judgement, whilst there is a reasonably arguable basis upon which the applicant could found a claim for judicial review of the decision of the Adjudicator to refuse to allow late filing of his Notice of Appeal on the basis that the Adjudicator had a discretion to consider the papers before him including the merits of the underlying claim and did not indicate he had done so, there would be no realistic prospect of success before the Adjudicator on an application for extension of time to file his Notice of Appeal if he were to be granted leave. I therefore refuse leave for judicial review.

Dated the 2^nd day of July 2020.

	(Marcus Wong)
	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 refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 2 July 2020 Camara Seydou 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 2 July 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8412/17/9/84/MLI8 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1533/17 (formerly RBCZ 10972/17)