Case Document

100%Judiciary

HCAL 360/2018

[2020] HKCFI 1933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 360 OF 2018

BETWEEN

	Saidy Duta	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:

Procedural history

1.The applicant entered Hong Kong legally on 5 May 2014 and thereafter overstayed. He was arrested by the police on 27 August 2014. The applicant submitted a non‑refoulement (“NRF”) claim by way of written representation on 29 August 2014. His NRF claim form was submitted on 4 March 2016.

2.The applicant attended a screening interview on 27 June 2016. The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 24 August 2016 and by Notice of Further Decision (re BOR 2) on 30 June 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wong Chun-nam (“the Adjudicator”), heard his appeal on 21 September 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 13 October 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 March 2018, which was out of time. He did not request an oral hearing. The matter was therefore considered on the papers.

Background

4.The applicant is a Gambian national. He was born on 11 November 1988, in Nyakoi. He trained and worked as a nurse. His claim arises out of a dispute over land between his father and uncle on one side and a person called Ali Danjo (“AD”) on the other. AD wanted to acquire the land and had been threatening the applicant’s father and uncle in order to obtain it. This dispute went back to 1996. In 2000, the applicant believes that AD used black magic on his uncle, although nothing else of note happened between 2000 and 2005, when his uncle passed away. At this point his father returned to the farm to take responsibility for the family. In 2008 AD threatened his father with black magic and in 2013 his father was attacked by a group of men with dogs and seriously wounded. He passed away soon after. The applicant believed this was also a result of black magic. No complaint was made to the police. As the applicant would now be the owner of the land in dispute, the applicant felt he was at risk and fled the country.

Form 86 out of time

5.In accordance with Order 53, rule 3, the applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review. This was dated 6 March 2018. Under Order 53, rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. Where the relief sought is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from 13 October 2017 and expired on 13 January 2018.

6.It is incumbent upon the applicant to provide good reason for extending time. The applicant has submitted no explanation for his delay and has not sought leave for an extension of time. I have nevertheless considered the principles^{^[1]} applicable to granting such an extension if an application had been made and those are:

1)     the length of delay;

2)     the reasons for delay;

3)     the prospects of success in the intended appeal; and

4)     the prejudice to the putative respondent and administration of justice if extension of time were granted.

7.In this case, the applicant was late by 52 days and has not offered any explanation for this delay. In view of the absence of good reason (or indeed any reason) for the delay in filing his Form 86, he must satisfy the court that there is a reasonable prospect of success in his intended leave application and that there will be no prejudice to the putative respondent or administration of justice if an extension of time were to be granted. As to the latter, there is no suggestion there would be any such prejudice, save that it is in the interest of justice for matters subject to judicial review to be dealt with expeditiously. This application therefore turns upon the likelihood of success of his application for judicial review.

8.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with. It can therefore only be an application to apply for leave to judicially review the Decision of the Adjudicator. The applicant must therefore show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain an extension of time to seek leave to judicially review that Decision.

9.All of the papers considered by the Director, were before the Adjudicator. He arranged for an oral hearing and went to some lengths to consider the various allegations made including the applicant’s belief in black magic but noted that no harm had actually ever been visited upon the applicant himself and he had availed himself of local community authorities, even if he had not gone to the police. The applicant’s case was weak and failed independently of the Adjudicator’s view of his credibility, but he noted that the applicant had not raised a claim when he first came to Hong Kong and that there had been only four incidents over an 18‑year period in which the applicant had remained in his home and apparently at risk but no harm had come to him. There was also a degree of illogicality to the motive of AD and his actions, which did not bear further inspection.

10.In the absence of any reason for the delay and any grounds of review, the court is left with the bare facts as relied upon by the applicant and the application of the law to those facts by the Adjudicator, along with the explanation given by him within the Decision. Having analysed that Decision, the applicant’s NRF claim is extremely weak and was rejected on that basis after due process. There is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted an extension of time to apply for leave to judicially review that Decision.

11.This application is refused.

Dated the 7^th day of August 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 7 August 2020 Saidy Duta 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 7 August 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4684/16/9/63/GA34 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9002644/17 (formerly RBCZ 2783/14)