Darboe Bakary v. Torture Claims Appeal Board

HCAL 714/2018

[2021] HKCFI 1769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 714 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 19 September 2016 granted if deemed necessary; and

2.  leave to apply for Judicial Review of both the decisions of Torture Claims Appeal Board dated 19 September 2016 and 2 October 2019 respectivelygranted.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of The Gambia who last arrived in Hong Kong on 21 July 2014 with permission to remain as a visitor up to 19 October 2014 when he did not depart, and on 20 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 supporters of the rival political party Alliance for Patriotic Reorientation and Construction (“APRC”) due to his mother’s involvement in the opposition party United Democratic Party (“UDP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Serrkuniky, The Gambia, where his mother was the local leader of UDP. After leaving school he worked in his mother’s mobile phone business and also assisted in her party’s activities and her local election campaign.

3.In about late 2013 during the local election in his home village between his mother representing UDP against the APRC candidate, his mother discovered that some APRC members and supporters were trying to bribe the local villagers to vote for their candidate, and so she made a complaint to the APRC party headquarter.

4.A few weeks later some soldiers together with some masked men came to the Applicant’s home and arrested his mother and his sister who was also a UDP member, and detained them in a government prison until after the election was won by the APRC candidate when his mother and sister were eventually granted bail and released from prison.    

5.After the incident they all felt it was no longer safe to remain in The Gambia, and so they departed on 14 April 2014 for Senegal, and from there his mother and sister made their own arrangements to go to the United States, while the Applicant travelled to China, and then 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 25 January 2016 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

6.By a Notice of Decision dated 8 April 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“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”).

7.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 the APRC people upon his return to The Gambia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that the dispute was between his mother and the APRC people over the 2013 election without any further threats or actions made against them upon their release and their subsequent departure from the country, that the Applicant was never their target and that there was never any threats being made against him, that the credibility of his claim was undermined by the fact that he did not raise his claim when he first arrived in Hong Kong in April 2014 until some 6 months later in October 2014 when he surrendered to the Immigration Department, that in any event 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”) shows that reasonable internal relocation alternatives are available in The Gambia with a large population of more than 2 million people 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 large cities such as Brikama or Bakau where it would be difficult if not impossible for those APRC people to locate him.

8.On 30 May 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but he was then outside the 14-day period required by section 37ZS of the Ordinance to file his notice of appeal, the Board therefore proceeded under section 37ZT to determine as a preliminary decision without a hearing whether to allow the late filing of his notice of appeal.

9.By a decision dated 19 September 2016 (“Board’s First Decision”) the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that he had been late for more than 5 weeks, that his explanation that he had simply forgotten to file his appeal before the deadline was unacceptable, and that there were no other relevant matters of fact within its knowledge amounting to special circumstances which would make it unjust not to allow the late filing of his notice of appeal.  

10.Meanwhile on 6 February 2017 the Director on his own initiative invited the Applicant to submit any 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 from him, the Director by a Notice of Further Decision dated 20 April 2017 also rejected his BOR 2 claim.

11.On 22 January 2018 the Applicant again lodged an appeal to the Board against this further decision of the Director, but again he was late with his notice of appeal, and the Board as before proceeded to determine as a preliminary decision without a hearing whether to allow such late filing, but it was not until 2 October 2019 when it delivered its decision not to allow the late filing of the Applicant’s notice of appeal.

12.In this decision (“Board’s Second Decision”) the Board found the Applicant’s delay on this occasion amounted to more than 8 months, that his explanation of being seriously ill in the hospital but without any documentary proof was not acceptable, and that there were similarly no other relevant matters of fact within its knowledge amounting to special circumstances that would make it unjust not to allow the late filing of his notice of appeal.   

13.Meanwhile on 24 April 2018 the Applicant filed his Form 86 now before me for leave to apply for judicial review of both the earlier decisions of the Director and of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he repeated his claim that his life would be in danger if refouled to his home country and that he is not satisfied with the decisions of the Director and the Board in rejecting his claim without reasonable grounds but without providing any details or particulars or elaborations how they were so.

14.By then the Applicant was also seriously out of time with the filing of his Form 86, 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 3 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 the Board’s First Decision fell on 19 December 2016, the Applicant was therefore more than 16 months late with his application, and in considering whether to extend time, the court shall have regards 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.

16.In the Applicant’s case, a delay of 16 months in respect of the Board’s First Decision must be considered as very substantial, for which he did not provide any explanation in his summons or affirmation, while he obviously could not have been late with the Board’s Second Decision which was then not yet available when he filed his Form 86, but it seems to me that by inviting the Applicant on 6 February 2017 as noted above to submit additional facts which might be relevant to his non-refoulement claim on “all applicable grounds for non-refoulement protection”, the Director had in fact allowed the Applicant to make further representation regarding his claim on all applicable grounds and not just on BOR 2 Risk notwithstanding that his claim on all those other grounds had earlier already been rejected, and hence it seems to me arguable that the Applicant may as a result in fact not been late with his Form 86 after all, or that the time for him to do so may have accordingly been extended by the Director’s Further Decision.     

17.More importantly, as regard the merits of the intended application, although as noted above the Applicant did not appear to have put forward any ground for his intended challenge, given the fact that his intended appeals to the Board against both decisions of the Director, which were made by an immigration officer, were part of the second tier of the enhanced screening process of a non-refoulement claim which is essentially a re-hearing of his claim by the Board acting under the delegated authority of the Chief Executive, high standards of fairness require that the Board’s reasons given in its decisions for refusing to allow the late filing of both appeals of the Applicant be examined by the court with rigorous scrutiny.

18.In deciding whether to allow the late filing of a notice of appeal, the Board is required by section 37ZT(2) of the Ordinance to 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.

19.Subsection (3) then requires that on the basis of those accounts the Board be satisfied whether by reason of any special circumstances that it would be unjust not to allow the late filing of the notice of appeal, and to so inform the applicant of its decision.

20.In the present case, in its First Decision the Board refused the late filing of the Applicant’s appeal regarding his non-refoulement claim under torture risk, BOR 3 and persecution risks for the following reasons:

“8.  In his reasons for the late filing of the notice of appeal contained in Section 5 of the form, the Applicant indicated that he had simply forgotten to put his appeal papers in by the appropriate deadline. He merely stated this: “I forgot on my signing day.”

9.  The statutory regime for late filing of notice of appeal is a strict one. It is the duty of a claimant under the Ordinance to establish his or her claim and to that end he or she must comply with time limits: Section 37ZA(1)(b) of the Ordinance.

10.  If the time limit for filing an appeal is not complied with, the claimant is obliged to give reasons for non-compliance, accompanied by any documentary evidence in support of those reasons. The Board must then, taking into account only those reasons and supporting documentary evidence if any, decide whether or not to allow late filing. This will only be allowed where the Board is satisfied that, by reason of special circumstances, it would be unjust not to do so.

11.  The statement of the Applicant that he had forgotten to file his notice of appeal within the prescribed time limits acknowledges the fact that he was aware of the need to do so. Moreover it was not until over five weeks after the date by which the Applicant was required to file his notice that he did so. There is no explanation from the Applicant for failing to file his notice of appeal in time other than his forgetfulness. A simple statement from an Applicant that he forgot to file his notice of appeal within the prescribed time limit is insufficient to allow the late filing of a notice of appeal.

12.  There are no other relevant matter of facts within my knowledge amounting to special circumstances which would make it unjust not to allow the late filing of the Applicant’s notice of appeal.”

21.While the Board may be entitled to find the Applicant’s explanation in the circumstances insufficient or unacceptable, it seems to me in doing so that it did not take account of the merits of the appeal as part of the relevant matters of fact within its knowledge required by section 37ZT(2)(b) as stated above, of which it did allude to in its decision [9], before deciding to refuse the Applicant’s late filing of his notice of appeal, as the Court of Appeal in Re Qasim Ali [2019] HKCA 430 held to be relevant, as elaborated by Lisa Wong J in giving judgment of the Court 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 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.”

22.The same can also be said about the Board’s Second Decision when it refused to allow the Applicant’s late filing of his appeal regarding his BOR 2 Risk, the Board also appeared to have again failed to take account of the merits of his appeal before deciding to refuse to allow the late filing of his notice of appeal (see [12] - [14] of its Second Decision).

23.Furthermore, when the Board criticized the Applicant for failing to produce any documentary evidence such as an admission notice from the hospital to confirm his assertion of being seriously ill in the hospital, it would have been within its knowledge that the Applicant was then being detained at Castle Peak Bay Immigration Centre (“CIC”) as evidenced by his address stated in his Notice of appeal and that the Board’s decision was subsequently also sent to him at CIC, and hence it seems to me that the Board could have requested the Applicant to provide further details of his alleged illness, and if necessary to also make enquiries with the hospital for verification of his assertions in the exercise of its assessment and determination of the validity of the evidence and the credibility of the Applicant in his situation, a duty in fact shared between an applicant and the adjudicator in such enquiry, and that in appropriate cases the applicant be given the benefit of the doubt, as it was held by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 1867, when Li CJ stated at para 21:

“ … while the applicant has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the applicant and examiner. In appropriate cases, such as where statements are not susceptible of proof, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt …”

24.His Lordship noted that the difficulties of proof faced by an applicant in his situation should be appreciated, as he may have fled from the country concerned with few belongings and documents and his level of education may be relatively low, and that it would not be appropriate for the adjudicator to just sit back and put the applicant to strict proof of his case, as he observed at para 54:

“ … it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned. For example, in the present case, the respondent’s letter of 5 March 1999 stated that “proof documents” were available but  could not be supplied due to the absence of photocopying facilities. The Secretary should obviously have looked into this.”

25.The exercise of such determination is in fact described as one of “joint endeavor” by Cheung CJHC (as he then was) in ST v Betty Kwan [2014] 4 HKLRD 277 (see paragraph 39). As noted above, the Board could have requested the Applicant, albeit in writing without hearing, for more information regarding his stated reasons for his late filing of his notice of appeal as raised in the Board’s decision if it found them necessary to establish his case, or to make its own enquiry, for example, with the hospital for verification of his alleged illness, or with the Immigration Department as to his hospitalization details while being detained at CIC.

26.In fact, high standards of fairness must be observed in all aspects of the assessment and determination of a non-refoulement claim which must include the determination of an application for late filing of a notice of appeal or petition by the Board, as it may have the consequences of denying the applicant of the second-tier screening process of his non-refoulement claim under the Unified Screening Mechanism (“USM”), and which to him where “life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved” must be one of momentous importance as observed by Li CJ in Probahar (see para 44), and as the determination of late filing of notice of appeal/petition is within the context of the exercise of the power to deport, it follows that high standards of fairness must also be demanded in the making of such determination.

27.In the premises, and for these reasons, I am of the view that the intended application for judicial review of the Board’s decisions 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, and accordingly I extend time to the Applicant regarding the Board’s First Decision if deemed necessary, and grant leave for him to apply for judicial review of both decisions of the Board on the grounds that (i) the Board failed to properly consider the Applicant’s reasons for his late filing of his notices of appeal and/or to apply high standards of fairness in the process of its determination of his applications; and (ii) that the Board failed to consider the merits of the Applicant’s appeals which is a relevant matter of fact within the Board’s knowledge under Section 37ZT(2)(b) of the Ordinance.

28.It follows that in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, the Applicant shall file an originating summons within 14 days of this decision, and serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 22^nd day of June 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