Okpala Chinedu Francis Alias Camara Joseph v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 980/2018

[2020] HKCFI 2695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 980 OF 2018

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only; or
	consideration of the documents and oral submissions by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) dated 8 March 2016 (sic) and the decision of the Director of Immigration (“the Director”) dated 7 June 2016.

2.By notices of decision dated 7 June 2016 and 8 December 2016 respectively, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  On 20 October 2016, the Applicant filed a Notice of Appeal with the Board to appeal the first decision of the Director.  The Board refused to allow the late filing of the Notice of Appeal against the Director’s first decision dated 7 June 2016.  It appears that no appeal was made to the Board in respect of the second decision of the Director.

3.The Applicant, born in 1980, has dual nationalities of Nigeria and Guinea.  He arrived in Hong Kong on 16 May 2009 on the strength of his Guinean passport and was permitted to remain until 30 May 2009 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 4 February 2010, he was arrested by the police and subsequently convicted of the offence of overstaying and sentenced to six weeks’ imprisonment.  On 14 January 2011, he was further convicted of the offence of trafficking in dangerous drug and sentenced to 10 years’ imprisonment.  He filed a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“torture claim”) by way of written representation dated 30 June 2010. The claim was taken to be a non-refoulement claim upon the commencement of the Unified Screening Mechanism (USM).

4.The facts of the case and the basis for the Applicant’s non-refoulement claim are summarized at para [6.1-6.24] of the first decision of the Director.  Put simply, the claim was based on the fear that, if refouled, the Applicant would be harmed or even killed by his paternal uncle if he would return to Nigeria because of a land dispute.  He claimed that his uncle had cast a charm on him and his family members because his uncle wanted to occupy a piece of land of his late father.  As a result, all his family members died.  In other to take his father’s land, his uncle poisoned the land in around 1986.  His uncle cast a spell on the Applicant’s family.  His father then died in 1986 when he entered his land.  His mother and siblings later died in a car accident.  The Applicant himself also started to have haematuria (blood in urine) and the doctor diagnosed that was the result of poisoning.  In 2005, he moved to live with his father’s close friend, Ugwu, in another area of Nigeria. Ugwu just treated him as a servant and also beat him up.  In late 2008, he decided to leave Nigeria.  As he also has Guinean nationality, he went to Guinea for the first time and obtained his Guinean passport and a visa for China.  He returned to Nigeria in around April 2009 and departed Nigeria for China in May 2009.  He stayed in the Mainland for a few days before he arrived in Hong Kong with his Guinean passport.  The Applicant claimed that if he returns to Nigeria, the spell cast by his uncle will adversely affect his safety and health.  He accepted that he would have no danger or problem in Guinea.  However, he has no family ties or friends there.

The Director’s decisions

5.By notices of decision dated 7 June 2016 and 8 December 2016 respectively, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds.  In his first decision, having taken into account all relevant circumstances, the Director assessed the level of risk of harm from his uncle upon his return to Nigeria or Guinea as low [11].  He found that state protection by Nigeria and Guinea are available to the Applicant [24] and internal relocation in Nigeria as well as settlement in Guinea are viable options for him [28-32].  On 20 October 2016 the Applicant lodged an appeal/ petition to the Board against the Director’s first decision.

The Board’s decision

6.As the Applicant’s Notice of Appeal to the Board was filed late, he was required to state his reasons for late filing.  The Applicant’s stated reason at section 5 of the Notice of Appeal was that “because of that time I have poor health and also I am not in good condition.  I am feeling so many pain so I can not do anything and also I have problem of write that’s why I can not appeal at that time” (sic).

7.By a decision dated “8 March 2016” (which should read 8 March 2017), the Board refused to allow late filing of the Notice of Appeal.  It noted that after the Applicant received the Notice of Decision (referring to the first decision of the Director), the Applicant wrote to the Board on 13 June 2016 indicating that he wished to delay submitting his Notice of Appeal until he was released from prison as he was suffering from health problems and wished to change his lawyer.  On 20 June 2016, the Board replied to him by letter re-iterating the requirements of s 37ZT of the Immigration Ordinance (in respect of the legal requirement for late filing of Notice of Appeal).  Nothing was heard from him until 20 October 2016, some 4 months later, when the Board received his Notice of Appeal.

8.The Board found that the reason given in respect of his poor health in his Notice of Appeal was no more than a bare assertion without documentary evidence in support, and the reason about his problem with writing did not justify a delay of 4 months in the filing of the Notice of Appeal.  The Board found that there are no other relevant matters of fact within its knowledge amount to special circumstances which would make it unjust not to allow the late filing of the Notice of Appeal.  Accordingly, the Board refused the application for late filing.

Application for leave to apply for judicial review

9.The Applicant filed a Form 86 on 31 May 2018 for leave to apply for judicial review of the decision of the Board and the first decision of the Director.  In his affidavit in support, he named and attached the Director’s first decision dated 7 June 2016 and the Board’s decision dated “8 March 2016”.  He also attached 3 pages of grounds of review mainly saying that: he has dual nationalities, he did not have the benefit of legal representation throughout his appeal to the Board, he referred to the requirement of “high standard of fairness”, and that he was suffering from poor health so he was late and his appeal was refused by the Board without any reason.

10.The date of the Board’s decision “8 March 2016” was clearly a typing error.  An officer of the Board has confirmed that it should be 8 March 2017. The Applicant’s application will be considered on this proper basis.

11.By a letter dated 30 June 2020 sent to the Applicant’s address for service, the court invited the Applicant to submit information including any submissions that he would like to make and confirm whether an oral hearing is requested.  The letter was returned by the postal service as undelivered.  Another letter dated 16 July 2020 was then sent to his address last reported to the Immigration Department.  There is no record that the letter has not been successfully posted.  Since then, the Applicant has not made any response or submission to the court.

12.No request for oral hearing has been made.  The application is therefore considered on the papers.

Discussion

13.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

Application out of time

14.It must be pointed out first that the Applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A 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.  In considering whether to extend time, the court will 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: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

15.The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

16.The principles relevant to the present case can be briefly stated: (a) an application made outside the three-month period will entail undue delay; (b) an applicant guilty of undue delay will require an extension of time to apply for leave for judicial review and must show good reason for extending the period, among the various factors likely to be significant is the merit of the substantive application; (c) even if there is good reason for extending the period it does not follow that leave to apply will automatically be given, the grant of leave will also depend on the arguability test (among other factors) – which requires the applicant to demonstrate his case enjoys realistic prospects of success; (d) where there is no good reason for extending the period, the court will refuse leave to apply for judicial review.

17.In this case, the 3-month time limit to judicially review the decision of the Board ended on 8 June 2017 and the application was late by almost one year.  The delay as against the first decision of the Director was even much longer.  The delay was substantial and excessive. The Applicant did not request extension of time or give explanation for the delay.  I cannot find any good reason for the undue delay.  The delay is inexcusable.  In the absence of satisfactory evidence to explain the undue delay, the undue delay in itself would be a sufficient ground to dismiss the application.

Merits of the intended application

18.Nevertheless, I will also consider the merits of the intended judicial review.  Far from a case with realistic prospect of success, I am of the view that the Applicant has no prospect of success at all.

19.Section 37ZT of the Immigration Ordinance relevantly provides for the followings in relation to late filing of appeal:

(1)  the applicant to provide information in support of the application for leave to file late, which must include:

(a)   a statement of the reasons for failing to file the notice within the 14-day period; and

(b)   any documentary evidence relied on in support of such reasons;

(2)  matters which the Board may take into account in considering whether to allow late filing are confined to:

(a)   reasons stated for the late filing, and supporting documentary evidence filed; and

(b)   any other relevant matters of fact within the knowledge of the Board; and

(3)  if the Board is satisfied that by reason of special circumstances it would be unjust not to allow the late filing, the Board may allow the late filing.

20.The Notice of Appeal filed with the Board in respect of the first decision of the Director was late by 4 months.  In fact, the Applicant wrote to the Board on 13 June 2016 indicating that he wished to delay submitting his Notice of Appeal until he was released from prison as he was suffering from health problems and wished to change his lawyer.  Despite that he was then in custody, he was reminded by the Board of the legal requirements of section 37ZT(1) of the Ordinance.  He would not be unaware of the legal requirement to file his Notice of Appeal within 14 days after the decision of the Director and the consequence of his failure to do so.  Yet, he did not file the Notice of Appeal within time and only filed it 4 months later.  In his late Notice of Appeal, he did not provide any medical evidence in support of his claim of poor health.  Nor was there any valid reason provided to support his claimed problem with writing. Even in his Form 86 and affidavit in support, he did not provide any evidence in support of such claims.

21.I agree with the Board that the claimed reasons are no more than a bare assertion without any documentary evidence in support as required by s 37ZT of the Ordinance.  There was no valid reason to support the delay for 4 months in filing the Notice of Appeal.

22.The Court of Appeal held in Re Qasim Ali [2019] HKCA 430, 8 April 2019 that regardless of the procedural breaches or the lack of explanation therefor, the Board should take account of the merits of the appeal in its determination of whether there are special circumstances that would make it unjust not to allow the late filing of the Notice of Appeal.  The Board did not expressly mention that it had considered the merit of his claim.  It would be more desirable for the Board to indicate clearly.  In any event, the outcome would have been the same.

23.In my view, the Applicant’s claim is extremely weak.

24.The claims that his family members had been killed by the spell cast by his uncle, and that his health had been harmed and he would be further harmed or even killed by the spell, if he were to return to Nigeria, are too far-fetched and without any evidence in support.  The evidence produced by the Applicant can hardly establish that he would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

25.The Applicant delayed in lodging the claim for protection after he came to Hong Kong.  Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  It could be taken into account as damaging the Applicant’s credibility.

26.Further, even if one gives the claimed account of events the most favourable interpretation, the Applicant did not suggest that he has any fear of harm in Guinea.  He cannot return to Guinea only because he has no family ties or friends there.  That is not a valid ground for international protection.  As he is a national of two states, he would only succeed in his claim for international protection if he can establish a relevant risk in both states.

27.I also agree with the Director that the Applicant will have reasonable state protection in Nigeria and internal relocation is a viable option for him.  He also has the option of re-settling in Guinea. According to him, he lived in Guinea for a few months until around April 2009. Nothing eventful happened during his stay in Guinea. He is now able bodied in his forties. It would not be unduly harsh for him to settle in Guinea.

28.For the above reasons, the Applicant’s non-refoulement claim is bound to fail.

29.The Applicant’s major complaint in his affidavit relates to the lack of legal representation being provided to him for the hearing at the Board.  It is well established that the high standards of fairness do not demand legal representation being made available all the time to a non-refoulement claimant.  His case was already properly presented to the Director with the assistance of duty lawyer.  The complaint is wholly without merit.

30.The ground in respect of his poor health was a bare assertion wholly unsupported by any evidence.  The ground must fail.

31.His allegation that the Board refused his late filing of Notice of Appeal without any reason is plainly incorrect.

32.The Applicant did not appeal the second decision of the Director to the Board.  Nor was that decision a subject matter in this application.  I will just briefly refer to it.  In that decision, the Director stated that the Applicant in his additional information for the consideration of the BOR 2 risk made a new claim that he will be facing another prison term in Nigeria because of the drug offence he had committed in Hong Kong.  The Director found, correctly in my view, the right of not to be subjected to double jeopardy had been held as neither non‑derogable nor absolute by the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Anor (2012) 15 HKCFAR 743.  The double jeopardy argument would not assist the Applicant.  As the Applicant did not provide any additional facts on BOR 2 risk, I cannot see any additional basis for advancing a case on such risk, independent from the BOR 3 risk, the persecution risk, and the torture risk.

33.I agree with the Board that there were no special circumstances which would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal.

34.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

35.For the reasons given, there is no prospect of success in the Applicant’s intended application for judicial review.

Disposition

36.For the above reasons, there are no good reason for extending the period to make the application.  I also do not see any reason to do so in the interests of justice.  Accordingly, I refuse to extend the time for the application for leave to apply for judicial review.  Leave to apply for judicial review is therefore refused.

Dated 11 November 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