Nthale Gilbert Muasa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 990/2017

[2020] HKCFI 1927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 990 OF 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 lawfully on 8 June 2014, but thereafter overstayed.  He was arrested by the police on 23 September 2014 and was convicted of overstaying on 24 September 2014, receiving a HK$200 fine.  He was transferred to the Immigration Department on 25 September 2014.  He submitted non-refoulement claims by way of written representation on 29 September, 3, 15 and 26 November 2014.  His non-refoulement claim form was submitted on 24 February 2016.

2.The applicant attended a screening interview on 28 April 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision on 27 May 2016 and by Notice of Further Decision (re BOR 2) on 24 April 2017.  The adjudicator of the Torture Claims Appeal Board, Mr Li Wai-chi (“the Adjudicator”), heard him on 15 May 2017 and considered his appeal on all applicable grounds.  The Adjudicator refused his appeal on 19 May 2017.  The applicant filed a Form 86 seeking leave to apply for judicial review of those decisions on 1 December 2017.  He did not request an oral hearing. The matter was therefore considered on the papers.

Background to claim

3.The applicant was born on 25 May 1992 and raised in Nairobi, Kenya.  He is Luo and a Muslim.  He has a bachelor’s degree in IT.  He was a member of the youth wing of the Orange Party and as such was in opposition to the Kikuyu.  As such, he took part in a civil war against the Kikuyu and was in the front ranks of people throwing stones at them.  In 2008, the civil war ended but the applicant was led to believe that he was being sought out for revenge.  He resigned from the youth wing and continued his studies at a boarding school.  In 2013, the applicant re‑joined the youth wing just before the presidential election which ended in a further civil war.  Once again, the applicant took part throwing rocks.  On neither occasion was he harmed.  After the civil war, the applicant went to live with his grandmother and came to know that he was being sought after once more.  He therefore left Kenya on 29 January 2014 and came to Hong Kong from China.

Form 86 out of time

4.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 1 December 2017.  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 19 May 2017 and expired on 19 August 2017.  The decision was sent to the applicant at Castle Peak Bay Immigration Centre, where he was detained.  The applicant has submitted no explanation for his delay and has not sought leave for an extension of time.

5.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.

6.In this case the applicant was late by 3 months and 12 days and has not offered any explanation for this delay.  In view of that, 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 before an extension of time will be granted.  The Director considered his case in some detail and gave him more than one opportunity to make his case.  The Adjudicator placed the applicant’s case at its highest, but nevertheless went on to confirm the Director’s decisions.  There is no reason at all before the court as to why an extension of time for leave to apply for judicial review should be given.  The factual basis for his claim is extremely weak.  There were no grounds provided for leave to judicially review the decisions of the Director and Adjudicator.  The applicant simply asks for a re-hearing.  The applicant’s claim as explained above is not reasonably arguable.  I can find no error of law or procedure in the decisions made and he does not have a realistic prospect of success.

7.This application is refused.

Dated the 7^th day of August 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