Case Document

100%Judiciary

HCAL 1173/2018

[2021] HKCFI 1416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1173 of 2018

BETWEEN

	Sanyang Yahya	Applicant
	and
	Torture Claims Appeal Board	Respondent
	and
	Director of Immigration	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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of the West African country The Gambia who arrived in Hong Kong on 15 July 2014 with permission to remain as a visitor up to 13 October 2014 when he did not depart and instead overstayed, and on 22 October 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to The Gambia he would be harmed or killed by the National Intelligent Agency (“NIA”) and/or other government authorities for political reasons and who had also murdered his father. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Bwiam, District Foni Kansala, Western Gambia where his father was a military officer in the Gambian Army. After leaving the Gambia Technical College with an engineering diploma, he worked as a supervisor in the National Water and Electricity Company, and followed in his father’s footsteps to support the political party Alliance for Patriotic Reorientation and Construction (“APRC”) which was then the country’s ruling party.

3.After retiring from the army in 1998, his father joined APRC as a member and participated in their local youth projects and became very popular amongst young voters, but in 2006 the then President Jammeh found the Applicant’s father becoming too popular in politics and had him arrested and detained by NIA.

4.After hearing of his father’s arrest, and fearing that NIA would be coming after him and his family, the Applicant fled from the country with his mother and siblings to Dakar, Senegal, and later when he heard that his father had been killed by NIA during an escape attempt, and as he was fearful that NIA would send agents to track him down in Senegal, he therefore departed on 6 July 2014 for China, and from there he travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 3 April 2017 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 (“Ordinance”) (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from NIA or the Gambia authorities upon his return to The Gambia as low due to the absence of any past ill-treatment from them, that the situation in The Gambia has since changed after the then President Jammeh was defeated in the 2016 election and had subsequently left the country in exile that there is no evidence that the new president or government would still be going after the Applicant, that the absence of any official involvement of the new government in the arrest or death of his father that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in The Gambia with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of The Gambia away from his home district in some large cities where it would be difficult if not impossible for him to be located.

7.On 27 April 2017 the Torture Claims Appeal Board (“Board”) received the notice of appeal lodged by the Applicant against the decision of the Director, but as it found that the notice of appeal was filed outside the 14-day period within which the Applicant was required by section 37ZS of the Immigration Ordinance to do after notice of the decision was given to him, and of which the Board proceeded under section 37ZT(2) to decide as a preliminary decision without a hearing whether or not to allow the late filing of the Applicant’s notice of appeal.

8.As the Board calculated the deadline for the Applicant to file his notice of appeal to be 20 April 2017, and hence when it received it on 27 April 2017, it therefore concluded that he was late with his appeal by 7 days, but for which the Applicant did not make any application for late filing in section 5 of his Notice of Appeal, nor did he at that time provide any explanation for his delay in the section, although he did set out detailed grounds for his appeal in section 2 of his Notice.

9.The Board therefore on 28 April 2017 requested the Applicant to provide his explanation for his delay, and on 26 May 2017 it received the Applicant’s explanation in writing that he was then in custody at the Lai Chi Kok Reception Centre (“LCKRC”) but that he did complete his notice of appeal within time and sent it out on 12 April 2017 to the Board but that it was out of his control as to when it would be received by the Board.

10.By its decision dated 12 April 2018 the Board did not accept that the Applicant’s reasons sufficiently explained the delay of his notice of appeal, and that it was not satisfied that there were any special circumstances shown by the Applicant that it would be unjust not to allow the late filing of his notice of appeal, and accordingly refused his application for late filing.

11.On 22 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affidavit of the same date he put forth essentially one single ground for his intended challenge: that the decision was unjust and unreasonable in refusing the late filing of his notice of appeal when he was then being detained at LCKRC and was unable to submit his supporting documents for his non-refoulement claim.

12.In considering the merits of this complain of the Applicant, it would be relevant to refer again to section 37ZT of the Ordinance which provides for the dealing of late filing of a notice of appeal by the Board as follows:

“(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which –

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(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 Appeal 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 …”

13.As noted by the Board in its decision, the Applicant’s Notice of Appeal which he dated 11 April 2017 and in which he also put his address at LCKRC, the Applicant did not in section 5 of his Notice make any application for late filing, nor did he provide any explanation for his delay, and for which he only subsequently at the request of the Board gave the following explanation, as recorded at [13] of the Board’s decision:

“I have filled this form on 11 and post at LCKRC post box on 12 April 2017 and it was within fourteen (14) days as stated on the form and it was the same advice from my lawyer. Please I would like to refer you to my lawyer for verification purpose … and secondly after submitting I was told that from 13 to 17 was public holiday. I would like you to please understand that am in custody and therefore I can’t fill on time and submit but I can’t predict how long it will take for delivery. Sorry for any inconvenience cause. Thank you.”

14.In its decision the Board found this explanation of the Applicant insufficient to explain his delay, and gave its reasons for refusing the late filing of his Notice of Appeal as follows:

“16. The Appellant’s explanation for late filing of his application is that he is in custody.

17. The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in SSHD v Begum, Those principles are that there is a need to enforce compliance with rules as set out in the Ordinance; and the need for this type of application to be conducted efficiently and at proportionate cost.

18. The Board does not accept that the Appellant’s reasons are sufficient to explain the delay in lodging his Notice of Appeal and notes that the Appellant did not provide any verification of his reasons for appealing late from his lawyer, as stated. Nor is it clear from the Appellant’s explanation that he actually signed the form on 11 April as he also says that he submitted late, which would explain the delay. The Board does not accept that the detention centre would take 16 days to take the Notice of Appeal from the postbox and send it to the Board. The Board is not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.”

15.However, based on the Board’s own finding, a delay of 7 days cannot, on any view, be regarded as serious or significant.

16.Secondly, and again as accepted by the Board, the Applicant was then in detention at LCKRC, and hence there would be some expected inevitable delays or restrictions as to incoming and outgoing mails as well as access to legal assistance, of which the Board should have taken into account in its consideration of the length or seriousness of the Applicant’s delay.

17.Thirdly, it is entirely possible that the Applicant did as he had claimed already complete his Notice of Appeal on 11 April 2017 and had put it in the LCKRC postbox on the following day, which could have been easily verified by the Board by referring to the postmark on the envelop which contained the Notice of Appeal, or from the calendar of the year 2017 as to whether 13 – 17 April were indeed public holidays such as the Easter Holiday as alleged by the Applicant which could have accounted for the insignificant delay, but which the Board did not appear to have done so either.

18.In the circumstances, it is in my view reasonably arguable that the Board’s finding that the Applicant’s reasons were not sufficient to explain the delay is unreasonable or irrational and/or that it had failed to explain or explain sufficiently its reason for doing so.

19.Further, in its determination of whether or not to allow the late filing of the Applicant’s Notice of Appeal, it seems to me that the Board had failed to take account of the merits of the appeal, as held by the Court of Appeal in Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019, to be necessary, as Hon Lisa Wong J in giving judgment of the Court elaborated as follows:

“23. … as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, even when 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 in [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].”

20.For the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

21.In the premises, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds as stated above, and direct that he shall file an originating summons in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A within 14 days from the date of this decision, 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 18^th day of May 2021.

(MAK Sze-ki)
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 granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 18^th May 2021 Sanyang Yahya Applicant’s ref. no.: Nil.		Sent to the Respondent / the Respondent’s solicitors / such Interested Parties as may be directed by the Court / the Interested Parties’ solicitors on 18^th May 2021 Torture Claims Appeal Board Respondent’s ref. no.: USM 6990/17/4/266/GA46 Director of Immigration Interested Party’s ref. no.: QA T/C 2989/16 (Formerly RBCZ 3002299/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)