Ifedioramma Nathaniel Uchenna v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1243/2018

[2020] HKCFI 1887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 1243 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:

1.      extension of time be granted for the Applicant’s late Notice of Application for Leave to Apply for Judicial Review; and

2.     leave to apply for judicial review be granted.

Observations for the Applicant:

1.The Applicant is a 52-year-old national of Nigeria who arrived in Hong Kong on 18 September 2003 with permission to remain as a visitor up to 2 October 2003 when he did not depart and instead overstayed and was arrested by police on 27 February 2007 for robbery for which he was subsequently convicted and sentenced to prison for 28 months.  After his discharge from prison and was referred to the Immigration Department for deportation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by certain gangsters for failing to follow their orders and for trying to leave the gang.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Ojuelegba, Lagos State, Nigeria but was abandoned in the woods as a baby and was raised by a local homeless woman underneath some highway flyover.

3.He never attended any school or received any formal education, and soon joined the local gang where he would usually be sent to the local shops to extort money for the gang.

4.However, on one occasion in 2002 when he and his friend were told by the gang leader to murder a priest and a nun, they failed to carry out the order, and fearing retributions and punishments from the gang, they were advised by the Applicant’s foster mother to make their escape, and with the assistance of a friend they fled to Lagos, but later when the Applicant heard that his foster mother had been murdered by the gang and that they were looking for him everywhere, he felt it was no longer safe to remain in Nigeria, and so on 18 September 2003 he departed for Hong Kong where he overstayed, and was subsequently arrested for robbery, and upon his release from prison and was referred to the Immigration Department, he then raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 26 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 11 May 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 those gangsters upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nigeria with a large population of 177 million people spread across a vast territory of more than 910,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Nigeria away from his home district in large cities where it would be difficult if not impossible for those gangsters to locate him.

7.On 8 June 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but he was then late with his appeal, as section 37ZS(1) of the Immigration Ordinance requires that the notice of appeal be filed within 14 days after notice of the decision has been given to an applicant unless late filing is allowed by the Board, for which section 37ZT(1) of the Ordinance provides that the applicant must include in the notice of appeal an application for late filing together with a statement of the reasons for failing to file the notice within the required period and with any documentary evidence in support.

8.In Section 5 of his Notice of Appeal, the Applicant did include an application for late filing, and in the accompanied statement he provided the following reasons:

“ Sir, I sincerely apologized for my late filing, the reason was because I could not read nor write, as the duty lawyers representing me in this non-refoulement claim has surprisingly decided not to represent me any further. I was in limbo, it took me sometime to manage and find someone who could help me in translation and putting my appeal/petition together. I humbly apologized for my shortcomings. Thank you for your understanding.”

9.It is imperative to also note here that in Section 2 of his Notice of Appeal, the Applicant had put forward 5 pages of grounds for his appeal against the Director’s Decision to the Board.

10.In deciding whether to allow the late filing of a notice of appeal, the Board is guided by the remaining subsections of 37ZT as follows:

“ (2) 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.

(3) If the 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.

(4)   If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.”

11.Accordingly, the Board proceeded to deal with the Applicant’s application as a preliminary decision without a hearing, and by a written notice dated 26 August 2015 it refused to allow the Applicant’s late filing of his Notice of Appeal upon rejecting his reasons for his delay and upon finding no other reason to allow his application.     

12.On 23 January 2017 the Director on his own initiative in writing invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response or additional facts from him, the Director by a Notice of Further Decision dated 9 February 2017 again rejected his non-refoulement claim including BOR 2 risk upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR being violated including right to life under BOR 2 upon his return to Nigeria.

13.As I understand, the Applicant did not on this occasion appeal to the Board against this Further Decision of the Director, and instead on 3 July 2018 he filed a Form 86 for leave to apply for judicial review of both the decisions of the Director dated 11 May 2015 and 9 February 2017, as well as the Board’s decision dated 26 August 2015, and put forward the following grounds for his intended challenge:

(1)   that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting the Applicant’s non-refoulement claim;

(2)   that the Director failed to take into account or give sufficient weight to the argument that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies which was the direct result of the misconduct of the police for which the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)   that the Director had failed to consider or give sufficient weight to those evidence from the listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect;

(4)   that the Director significantly relied on COI which suited his pre-conceived conclusion which was a clear case of unfair attitude enough to render his decision void;

(5)   that the Director failed to consider the fact that corruption and incompetency of the administration in the Applicant’s country were still very serious problems as reported by various human right organizations on the matter which stated testament to the Applicant’s assertions;

(6)   that the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered unreasonable in the scope of public law;

(7)   that the adjudicator failed to make sufficient enquiry before finalizing its decision; and

(8)   that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

14.By then the Applicant was of course seriously out of time with his intended application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

15.As the last day of the three-month period for him to file his Form 86 regarding even the more recent Further Decision of the Director fell on 9 May 2017, the Applicant would be more than 13 months late with his intended challenge, not to mention the delay regarding the Board’s decision in excess of 2 ½ years.

16.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: AW v Director of Immigration [2016] 2 HKC 393.

17.In the Applicant’s case, his delays must be considered as very substantial or excessive as regard any of those decisions, for which he explained both in his affirmation and at the hearing that he never received the Board’s decision as he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”), and that it was not until after his release that he was subsequently informed of the Board’s decision as well as the Further Decision of the Director when by then he was already way out of time.

18.It is not clear from either the Applicant or the available information before the court as to when exactly was he being detained at CIC, and while I note from his Form 86 as well as his supporting affirmation that he was then indeed still being detained, in which it is accepted that he would encounter some inconvenience or even restrictions in accessing assistance in preparing his application, but still they do not appear to me to justify his such serious delay with his application.     

19.As for the merits of his intended application, most of his proposed grounds appear just broad and vague assertions of the Applicant containing several key words and phrases but without details or particulars or elaborations as to why they are relevant to his case.

20.However, given the serious implications of the Board’s decision to refuse the Applicant’s late filing of his appeal against the Director’s earlier decision, resulting in him essentially being denied a rehearing of his claim by the Board as part of a two-tier enhanced screening process of non-refoulement claims on all applicable grounds under the Unified Screening Mechanism (“USM”) in place since March 2014, high standards of fairness require that the Board’s decision be scrutinized by the court as to the reasons why the late filing of his Notice of Appeal was refused.     

21.In its decision the Board found the deadline to appeal against the Director’s Decision of 11 May 2015 to be 26 May 2015 ([4]), and hence the Applicant’s Notice of Appeal received by the Board on 8 June 2015 would put his delay at 13 days which may not in my view be regarded as significant or excessive for this type of applicants and in their circumstances.

22.The Board then rejected the Applicant’s explanation for his delay for the following reasons:

“ 8. The legislature has made it clear that an explanation for the lateness is important. The strength of the grounds of the Appeal/Petition is a factor that can be considered, if there is some explanation or excuse for lateness. Having considered the reasons for late filing of the Notice, I do not accept that the Appellant had a reasonable ground to file the Notice late. The instruction to file the Notice within 14 days is clearly stated in the Notice, it was the obligation for the Appellant to follow the instruction. Further, I noted that reasons given in the Notice were written in English and the Grounds of Appeal/Petition was also written in English. I noticed that there is no document submitted in supporting that the reasons given. I found there was no evidence to support that the Grounds for Appeal/Petition stated were written by other person other than by the Appellant. I don’t accept that the Appellant could not write and read.”

23.It seems to me that the Board rejected the Applicant’s explanation that he had to seek help from someone with the preparation of his appeal because it found him capable of reading and writing English and was therefore able to prepare the documents by himself, and hence there was no reason for him not to be able to follow the instruction to file his Notice of Appeal within time.

24.Without a hearing and hence in the absence of the Applicant appearing before the Board, there is however nothing in the materials or information available to the Board to suggest that the Applicant could read and write English, or that he was capable of preparing those grounds for the appeal by himself instead of other person as he had claimed.

25.In fact, it was stated in the Director’s Decision, a copy of which was attached to the Notice of Appeal and was therefore available before the Board, that the Applicant was an orphan adopted by a street sleeper and had never received any formal education ([7] – [9] of the Director’s Decision).  He may, or may not, have learnt to read or write English later in life, but there is simply no evidential basis for the Board to make such finding in its decision.

26.As such it is in my view reasonably arguable that the Board’s findings that the Applicant had no good reason for his delay in filing his Notice of Appeal were not in the circumstances Wednesbury reasonable.

27.More importantly, the Board did not appear to have taken account of the merits of the Applicant’s appeal as part of other relevant matters of fact within its knowledge under section 37ZT(2)(b) of the Ordinance, when it went on to state in its decision as follows:

“ 9. For the strength of the grounds of appeal/petition, it is only a factor to consider if there are reasons for the late filing application. Presently I do not have sufficient documents or information for me to decide his grounds of appeal/petition and it is not appropriate to consider the strength of his grounds of appeal/petition.

10.  I also had considered if there is any obvious and or quite exceptional reason for allowing the application for the late filing of the Notice.  I find in all the circumstances, there is no reason to allow the late filing of the Notice.  I, therefore, refused the application for late filing of the Notice.”   

28.Merits of the appeal is in fact one of the relevant matters that the Board should take into account when considering whether there are any special circumstances which may make it unjust not to allow the late filing of the appeal, as held by the Court of Appeal in Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019 when it stated:

“ 23. … 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.”   

29.As noted above, the Applicant had in his Notice of Appeal put forward 5 pages of his grounds of appeal against the Director’s decision, of which the Board did allude to in its decision and accept as a factor for consideration, but somehow it did not find it appropriate to do so in the Applicant’s case.  As such and for the same reasons as in Ali, supra, it is in my view reasonably arguable that the Board had failed to consider the merits of the Applicant’s appeal when it refused his late filing of his Notice of Appeal.       

30.In the premises and accordingly, I extend time for the Applicant’s application, and grant leave for him to apply for judicial review of the Board’s decision on the basis stated above, and direct that he shall issue an originating summons under Order 53 rule 5 of the Rules of the High Court, Cap 4A within 14 days of this order, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 10^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