Ekeoma Lucky Miracle v. Torture Claims Appeal Board

HCAL 1908/2018

[2021] HKCFI 939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1908 of 2018

BETWEEN

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 oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 11 February 2015 granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Nigeria who arrived in Hong Kong on 10 July 2007 with permission to remain as a visitor up to 24 July 2007 when he did not depart and instead overstayed and was arrested by police on 7 April 2008. After he was referred to the Immigration Department for investigation, 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 members of the secessionist movement known as Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”) for leaving the organization. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Enugu State of Nigeria. After leaving school he ran his own trading business and joined MASSOB to support the creation of an independent state of Biafra, but as it was later branded as an illegal and violent secessionist movement by the Nigerian government and for killing and murdering ordinary people as well as government officials and policemen, the Applicant became disillusioned with the organization, and in 2006 he stopped attending its meetings or activities, but when some of its members became suspicious and started to accuse him of being a police informant, and had on several occasions tried to ambush or assault him but without success as the Applicant managed to escape unharmed to seek refuge at his friend’s place.     

3.As the Applicant was however still fearful for his life, he therefore departed Nigeria on 9 July 2007 and eventually arrived in Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 16 December 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“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”).

5.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 the MASSOB people 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 such as Lagos State where it would be difficult if not impossible for those MASSOB people to locate him.

6.On 14 January 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as he was then outside the 14‑day period within which to file his notice of appeal as required by section 37ZS(1) of the Immigration Ordinance (“Ordinance”), the Board pursuant to section 37ZT(2) proceeded to determine as a preliminary decision without a hearing whether to allow the late filing of his notice of appeal.

7.By a decision dated 11 February 2015 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that it had been late by 2 weeks, that there was no documentary evidence in support of his stated reasons that he received the decision late or that he lost his contact which it found as vague that it was obliged to disregard them, and that there was nothing before it to indicate any special circumstances by reason of which it could find that it would be unjust not to allow the late filing of his notice of appeal.

8.On 9 January 2017 the Director on his own initiative invited the Applicant to submit additional facts which he may consider 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 from the Applicant, the Director by a Notice of Further Decision dated 14 February 2017 again rejected the Applicant’s claim on all applicable grounds including BOR 2 Risk.

9.The Applicant did not lodge any appeal to the Board against this further decision of the Director, and instead he filed a Form 86 on 11 September 2018 for leave to apply for judicial review of a decision which he stated as one made by the Director on 4 September 2018 but which there is none according to the Director or the Board, and no ground for seeking relief was given in the Form either, while in his affidavit of the same date the Applicant merely repeated his claim that his life would still be in danger in his home country without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.Given the fact that the first decision of the Director dated 16 December 2014 is no longer susceptible to judicial review within this two-tier administrative structure for the processing of non-refoulement claims after the Applicant had pursued his appeal to the Board, as held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549 at [45], nor is the further decision of the Director of 14 February 2017 which the Applicant has not, as noted above, lodged any appeal to the Board as required by section 37ZR of the Ordinance if he were to challenge that decision, thereby without having exhausted the avenue for appeal under this two-tier administrative structure.

11.Henceforth, the only remaining decision in the Applicant’s case which is susceptible to judicial review would be the one made by the Board on 11 February 2015, and which I propose to treat it as such, but in that case the Applicant would be seriously out of time with his 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.

12.As the last day of the three-month period for him to file his Form 86 fell on 11 May 2015, the Applicant was therefore more than 3 years late with his application, and 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: see AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of more than 3 years must be considered as very substantial or excessive, for which he did not provide any explanation, but given that it was a decision which refused the late filing of his appeal and thus deprived him of what was essentially a review or rehearing of the merits of his non-refoulement claim by the Board which is generally presided over by someone, unlike an immigration officer in the initial determination, who will usually be legally qualified and may even with judicial experience under the second-tier of the administrative structure, and therefore high standards of fairness would require that its reasons of refusal be considered by the court with anxious scrutiny notwithstanding the serious delay.

14.In his notice of appeal dated 14 January 2015, the Applicant in section 5 gave his reason for being late in that he received the Board’s decision late and that he lost his contact but without providing any further details, nor was there any documentary evidence in support of such assertions, while in section 2 of his notice of appeal, he included what appears to be a full page of his grounds of appeal.     

15.As found by the Board in its decision, and which is not disputed, the Applicant was late by 2 weeks with his notice of appeal, of which the Board did not appear to have made any finding as to its seriousness, but it did emphasize that the statutory regime for late filing is a strict one, and that it is generally the statutory duty of a torture claimant to establish his claim and to comply with all time limits, as it correctly referred to the various such duties required by section 37ZA(1) of the Ordinance.

16.However, having also reminded itself of section 37ZT(2) and (3) of the Ordinance which provide that in deciding whether to allow the late filing of the notice of appeal, the Board may only take account of the reasons stated by an applicant, which it found in the present case, correctly in my view, vague and not acceptable, and any accompanying documentary evidence relied on in support of the reasons, which it again correctly found to be none from the Applicant, but it did not however appear to have gone on to take account of “any other relevant matters of fact within the knowledge of the Board” stipulated by subsection (2)(b) before deciding that there were no special circumstances that it would be unjust not to allow the late filing of the notice of appeal.

17.One of such matters of fact within the Board’s knowledge is the merits of the appeal, as held by the Court of Appeal in Re Qasim Ali [2019] HKCA 430, CACV 547/2018, 8 April 2019, when Lisa Wong J in giving judgment of the Court 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 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.”    

18.In the Applicant’s case, it is plain from the decision that the Board did not consider the merits of his claim by reference to the Director’s decision which was before it, nor did it consider the merits of the appeal, as the Board stated at [9]:

“Although the Director’s decision is before me, I cannot at this stage have any regard to the merits or otherwise of the claim. Nor can I have regard to other matters, such as family circumstances, which an applicant may put forward, as this Applicant has.”

19.In the premises, and for the reasons give, it is in my view reasonably arguable that the Board failed to take account of the merits of the Applicant’s claim or his appeal, which are relevant matters of fact within the Board’s knowledge within the meaning of section 37ZT(2)(b) of the Ordinance before it decided to refuse the late filing of his notice of appeal, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.      

20.Accordingly, I extend time to the Applicant to apply for judicial review of the Board’s decision, and grant leave for him to do so on the basis mentioned above, and in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, I direct that he shall file and serve an originating summons within 14 days from the date of this decision, and to serve a copy together with all the relevant documents on the Board as respondent and on the Director as interested party. 

Dated the 9^th day of April 2021.

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