Nwosu Christopher Okechi v. Torture Claims Appeal Board

HCAL 225/2018

[2021] HKCFI 3345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 225 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 26 January 2017 granted; and

2.  leave to apply for Judicial Review of both the decisions of Torture Claims Appeal Board dated 26 January 2017 and 8 December 2017 respectivelygranted.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of Nigeria who arrived in Hong Kong on 27 March 2007 with permission to remain as a visitor up to 17 April 2007 when he did not depart and instead overstayed and was arrested by police on 20 October 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 rival political party Peoples Democratic Party (“PDP”) and/or the Muslim terrorist group Boko Haram for being a Christian. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Port Harcourt, Rivers State, Nigeria into a family of supporters of the political party All Nigeria Peoples Party (“ANPP”). After leaving school he worked as a farmer and followed his family’s tradition to become a member and supporter of ANPP without holding any official post in the party.

3.In 1999 his eldest brother Raymond represented ANPP to campaign in a councillorship election in Ehime Mbano of the Imo State against the PDP’s candidate Agbiogwu, during which Agbiogwu and her PDP people offered bribe to Raymond to abandon his campaign, but when Raymond refused, they threatened to kill him, of which Raymond subsequently made a report to the police.

4.Several days later Raymond and another brother of the Applicant were found dead by gun shots while on their way to a party meeting, and while the police were conducting their investigation, the Applicant and his parents suspected that Agbiogwu and PDP were behind the murder, and fearing for their own safety, they fled from their home district to take shelter in another state, but after another brother Chika was shot dead by unknown men, the Applicant fled to Enugu State, but as he still felt it was not safe to remain in Nigeria, he therefore departed on 26 March 2007 for 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 9 June 2014 with legal representation from the Duty Lawyer Service (“DLS”) but failed to complete his screening interviews before an immigration officer due to alleged medical reasons. 

5.While being released on recognizance pending the determination of his claim, the Applicant was again arrested by police, first on 29 July 2013 for possession of dangerous drugs for which he was convicted on 17 December 2013 and sentenced to prison for 6 months, and again on 17 December 2014 for deception and handling stolen goods, for which he was subsequently convicted and sentenced to prison for 24 months, and upon his discharge on 18 April 2016 he was transferred to Castle Peak Bay Immigration Centre (“CIC”) for detention until 12 May 2016 when he was released on recognizance.         

6.By a Notice of Decision dated 10 June 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 (“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”) (“Director’s First Decision”).

7.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 Agbiogwu and her PDP people upon his return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that the Applicant had ever been targeted by Boko Haram who operated mainly in northern Nigeria where the Applicant can avoid, 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 181 million people spread across a vast territory of more than 923,000 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 the PDP people or Boko Haram to locate him.

8.On 13 July 2016 the Torture Claims Appeal Board (“Board”) received a copy of the Applicant’s Notice of Appeal dated 12 July 2016 against the Director’s First Decision by fax from the Justice Centre Hong Kong (“JCHK”) with a covering letter stating that JCHK only assisted the Applicant in respect of his claim but not legally representing him and that it wrote to assist him and the Board by relaying his instructions in the matters.

9.On the same day an office staff of the Board telephoned the Applicant to inform him that the faxed copy of his Notice of Appeal was not acceptable and that he must file the original Notice, to which the Applicant replied that he would come to the office of the Board in the afternoon, but he did not turn up, nor could he be reached by phone for the next several days.

10.Eventually 6 days later on 19 July 2016 the Applicant attended at the Board’s office and signed and re-dated the same day on each page of the faxed copy of his Notice of Appeal, which was then treated as being filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, and the Board therefore proceeded under Section 37ZT(2) of the Ordinance to decide as a preliminary decision without a hearing whether to allow its late filing.

11.By a written notice dated 26 January 2017 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that it had been late by some 20 days and that there were no special circumstances for allowing the Applicant an extension of time to file his Notice of Appeal (“Board’s First Decision”).        

12.Meanwhile on 22 March 2017 the Director on his own initiative 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 from the Applicant, the Director by a Notice of Further Decision dated 6 April 2017 rejected his BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 upon his return to Nigeria (Director’s Further Decision”).

13.On 22 August 2017 the Applicant wrote from CIC to the Director by a Detainee Submission Sheet enquired about the progress of his claim and requested for “a notice of decision together with the appeal form”, and to which the Director replied on 28 August 2017 enclosing a copy of the Notice of Further Decision and a set of the Notice of Appeal/Petition Non-Refoulement Claim as requested. 

14.On 11 September 2017 the Board received a Notice of Appeal dated 7 September 2017 from the Applicant against the Further Decision of the Director, in which it again attached a letter from JCHK enclosing an application for extension of time for late filing of his Notice of Appeal as well as his proposed grounds of appeal.

15.The Board again proceeded under Section 37ZT(2) of the Ordinance to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, for which it raised further enquiries with the Applicant and the Director regarding the Further Decision, and to which both had replied and with further representations from JCHK for the Applicant.

16.On 8 December 2017 the Board again refused the late filing of the Applicant’s Notice of Appeal upon finding that it had been more than 5 months late, and that the Applicant had failed to show by reason of special circumstances that it would be unjust not to allow the late filing of his Notice of Appeal (“Board’s Second Decision”).    

17.On 13 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s Second Decision essentially on the basis that the Board did not hear from the Applicant which I take it to mean that no oral hearing had been held so that he was not heard for his appeal, and that the decision was made on the basis of assumptions but without any particulars or elaboration.

18.The complaint that no oral hearing was held for his appeal can be easily disposed of as it is clearly stipulated in Section 37ZT(2) of the Ordinance that the Board was to decide whether to allow the late filing of his appeal without a hearing, hence this ground is simply not arguable.

19.As for his complaint that the decision was made on assumptions, the Applicant did not provide any details or particulars or elaborations as to how it did so or what assumptions had been relied upon. As such this ground does not appear to me reasonably arguable either.

20.Nevertheless, the Court shall adopt an enhanced standard in scrutinizing both decisions of the Board in view of the seriousness of the issues at hand and which had the consequences of denying the Applicant of the second-tier screening process of his non-refoulement claim under the Unified Screening Mechanism (“USM”) in place since March 2014 for the screening of all non-refoulement claims including his subsequent claim under BOR 2 Risk.

The Board’s First Decision 27 January 2017

21.Before proceeding to consider the Board’s reasons for refusing to allow the late filing of both of the Applicant’s notices of appeals, it would be relevant to first be reminded of the relevant provisions for dealing with such late filing under Section 37ZT of the Ordinance 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 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.”

22.In his first Notice of Appeal (“First Notice of Appeal”) against the Director’s First Decision, which the Board noted was dated 12 July 2016 and was received by fax on 13 July 2016, it would be relevant to first note the following matters stated by the Applicant:

(a)     in Section 1 for Personal Information: it was stated that the Applicant had no fixed abode, and that he should be contacted via JCHK;

(b)     in both Section 2(B) Grounds of Appeal/Petition and Section 5 Application for Late Filing: the Applicant relied on the matters stated in the attached letter from JCHK of 12 July 2016.   

23.In that letter JCHK stated the following instructions from the Applicant as reasons in support of his application for the late filing of his Notice of Appeal:

“      He has been homeless since his release from Immigration Detention (on 12 May 2016), and only received the relevant decision under appeal on the afternoon of Friday the 08 July 2016. He has been effectively unrepresented throughout this time, and first contacted the Justice Centre on the 11 July 2016. He last had contact with his Duty Lawyer on 5 May 2016. After his release from detention neither he nor his lawyer had any effective way of contacting each other (the applicant had been dependent on contact from his lawyer, having no forwarding details; and he no longer a fixed abode or functioning contact number to be contacted upon by his lawyer).

However, as of today we have contacted his prior duty lawyer, Richard Donald of Gilt Chambers, who has confirmed the same. We waited for the confirmation before submitting this application to ensure the accuracy of these matter.

The appellant therefore submitted this application on the second working day after receiving the same, i.e. otherwise within the relevant timeline, as envisaged.

We submit that in light of these matters, and given the gravity of the issues raised within his protection claim as alleged, it would be unfair, unjust or otherwise unreasonable not to extent time accordingly.”  

24.The letter also set out 12 grounds of appeal which the Applicant sought to rely upon for his challenge of the Director’s decision. 

25.In its decision refusing to allow the Applicant’s late filing of his Notice of Appeal, the Board first made the following findings that the Notice of Appeal had been late by 20 days [21]:

(a)     that the Director’s decision was served on DLS on 10 June 2016 [4];

(b)     that the decision was presumed under Section 37ZV of the Ordinance to have been served on the Applicant via DLS on the second day after it was delivered to DLS, i.e. 12 June 2016 [5];

(c)     that the last day for the Applicant to file his Notice of Appeal was accordingly 26 June 2016 which happened to be a Sunday and therefore service could be effected on Monday 27 June 2016 [6]. 

26.The Board then noted that DLS had not been able to communicate the Director’s decision to the Applicant as they were unable to contact him either by phone calls, which were not answered, or by letter to his last known address to which there was no response (see [7] – [9] of First Decision), and eventually the Notice of Appeal dated 12 July 2016 was received by the Board by fax from JCHK on 13 July 2016 but was rejected for not being the original until as noted above 6 days later on 19 July 2016 when the Applicant attended at the office to signify the faxed copy as original, and of which the Board therefore concluded to have been late by 20 days.   

27.The Board proceeded to consider the grounds provided in the JCHK letter for seeking leave to file the Applicant’s Notice of Appeal out of time which it set out in paragraph 26 of the Decision as follows:

(a) The Appellant had been homeless since release from Immigration detention on 12th May 2016 and had only received the relevant decision on Friday afternoon, 8th July 2016;

(b) He has been effectively unrepresented throughout this time and first contacted the Justice Centre on 11th July 2016;
(c) He last had contact with the Duty Lawyer Service on 5th May 2016;

(d) After his release from detention, neither he nor his lawyer had any effective way of contacting each other (the Claimant had been dependent upon contact from his lawyer – but he had no forwarding details, being no longer of fixed abode and with no functioning contact number to be contacted upon by his lawyer;

(e) The Duty Lawyer Service counsel, Mr Richard Donald, has confirmed this position;

(f) The Justice Centre of Hong Kong has waited for confirmation before submitting the application to ensure accuracy of these matters;

(g) The Claimant has therefore submitted his application on the second working day after receiving the same;

(h) In light of these matters, and given the gravity of the issues raised within his protection claim alleged, it would be unfair, unjust or otherwise unreasonable not to extend the time accordingly.

28.The Board considered each of these grounds and found none of them constitutes special circumstances to allow the late filing of the Applicant’s Notice of Appeal, as it was essentially of the view that while the Applicant might have been homeless and unrepresented at the time, he would have been told by DLS of the 14-day deadline for the filing of his appeal against the Director’s decision, that he should have kept in close and regular contact with his former lawyer from DLS for the purpose of receiving the Director’s decision, and also with JCHK for advice and assistance with his intended appeal, as the Applicant was not entitled to simply sit back and expect the DLS, the Director and the Board to search for him at his homeless place of abode, and that the Director had already fully considered his claims put forward and had given cogent reasons for their rejection in his decision (see [26] of First Decision).

29.The Board then concluded at [27] that as the Applicant was not contactable, thus showing that he had no intention of vigorously pursuing his appeal, and as he had failed to provide any information upon why he only personally received the Director’s decision on 8 July 2016, there were no special circumstances for allowing him an extension of time to file his Notice of Appeal.

30.First, it is of note from the above that although the Board had considered each and every one of those listed grounds or reasons for the Applicant’s delay separately and individually, it seems that it never considered them collectively and holistically so as to arrive at its conclusion, which is what it was supposed to do, and if it did, it does not appear to me to have properly or sufficiently explained in its conclusion (see [27] of the Decision).    

31.As for its findings as to the reasons of the Applicant’s delay and the length of such delay, it is plain from the formal screening process of his non-refoulement claim by the Director on 23 April 2014 to the making of the determination dated 10 June 2016, the Applicant had spent a better part of that period in prison or detention until 12 May 2016 which was about one month before the Director’s First Decision, and during that month he was homeless, and likely also phoneless or without any proper contacting means, which explain the difficulties that DLS had in contacting him, and that it was not until 8 July 2016 when he was given the Director’s Decision, of which if accepted by the Board as the date when the 14-day period for the Applicant to file his Notice of Appeal should only start to run and to end on 22 July 2016, the Applicant would not have been late when he eventually attended at the Board’s office on 19 July 2016 to signify the faxed copy sent by JCHK.

32.While the Board was entitled to expect the Applicant to be vigilant about his claim being processed by the Director and to keep in close and regular contact with his lawyer from DLS about any news of the forthcoming decision, but after having first raised his claim back in October 2008 and having spent the bulk of 2015 and 2016 in prison or detention, one may certainly ask how vigilant should the Applicant be during that one month after his release from detention and into a homeless situation, probably without a phone, and still be expected to make close and regular contact with his lawyer to enquire about a decision which had taken years in the making?

33.The Board did not specify how vigilant the Applicant should be in the circumstances he had then found himself in, but went on to find in its decision that the Applicant being uncontactable shows that he had no intention of vigorously pursuing his appeal as he failed to provide any information upon why he only personally received the Director’s Decision on 8 July 2016 (see [27]).

34.While the Board was again entitled to take into account the fact that the Applicant was not contactable and thus failed to provide further information as to why he only received the Director’s Decision on 8 July 2016 in its determination as to whether the Applicant had been acting vigilantly and/or conducting himself properly as a claimant waiting for the result of his non-refoulement claim so as to decide whether there was any special circumstances to make it unjust not to allow the late filing of his Notice of Appeal, there does not appear to me any basis for the Board to find that they show that the Applicant had no intention of vigorously pursuing his appeal.

35.In fact, right after he was eventually given a copy of the Director’s Decision on 8 July 2016, the Applicant approached JCHK for assistance, and within 5 days JCHK faxed a copy of his Notice of Appeal to the Board, which clearly does not support the Board’s observation, and instead shows a clear intention to vigorously pursue his appeal to the Board right after receiving the Director’s Decision.

36.While I can see why the Appeal Board in its position responsible for the second-tier screening process of non-refoulement claims finds it necessary for good administrative and financial purposes to hold the claimants to strict compliance of the procedural rules, as there is no question that many of such claimants who have come to Hong Kong are not genuine asylum seekers and would try all sorts of means to prolong their stay here by delaying and dragging on their screening process before the Director and the Board by, as common examples, failing to attend their screening interviews or oral hearings for dubious excuses, of which I have seen my shares in my court, but I find it difficult to imagine, as the Board here seems to have suspected of the Applicant, how a deliberate attempt not to file a notice of appeal to the Board within the 14-day period, which would otherwise trigger another round of long process of the claim which may take months or even years to complete, could have achieved that delaying purpose?

37.Furthermore, even on the basis of the Board’s assessment that the Applicant should have filed his Notice of Appeal by 27 June 2016, which would have been a delay of 20 days as found by the Board, but in the given circumstances of the Applicant, it is certainly arguable that it should not be regarded as substantial.

38.In the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status (1079, re-edited 1992) which provides guidance in conducting refugee status determination and has been adopted by our courts since the Court of Final Appeal’s decision in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, it is stated that while an applicant making the has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the applicant and examiner charged with determining his status, and 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 (see paras. 195 and 196 of the Handbook).

39.Here, one is concerned with procedural fairness, of which high standards are required, as Li CJ in Prabakarproceeded to elaborate:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D-G.

44.  Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.”

40.In the Applicant’s case, one is concerned with his right to proceed to the second tier of the screening process of his non-refoulement claim by the Board under USM after his claim has been rejected by an immigration officer, and given the gravity of the consequences of not being allowed to proceed to have his claim determined by the Board on all the applicable grounds and of being deported to a Risk State where he claimed to have lost 3 brothers due to political persecutions, it is in my view reasonably arguable that the Board failed to apply high standards of fairness in its decision not to allow the late filing of his Notice of Appeal in the circumstances of the Applicant and/or that the decision is not Wednesbury reasonable.  

41.Furthermore, it seems to me that in its determination of whether to allow the late filing of the Applicant’s Notice of Appeal, the Board also failed to take account of the merits of the appeal which is one of the relevant matters within its knowledge as required by Section 37ZT(2)(b) of the Ordinance, and held by the Court of Appeal to be relevant in Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, as Hon Lisa Wong J stated in the judgment for the Court in the latter case:

“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 decision 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.”

42.In the circumstances it would also be reasonably arguable that the Board in refusing to allow the late filing of the Applicant’s Notice of Appeal, it failed to consider the merits or substance of the Applicant’s non-refoulement claim which is part of the relevant matters of fact within the Board’s knowledge under Section 37ZT(2)(b) of the Ordinance.

43.However, the Applicant would have been seriously out of time with his leave application if he were indeed to challenge this first decision of the Board, as 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 day 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.

44.As the last day for the Applicant to file his Form 86 to challenge this decision of the Board fell on 26 April 2017, he would be out of time by more than 9 months, 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: AW v Director of Immigration [2016] 2 HKC 393.

45.In the Applicant’s case, a delay of more than 9 months must be considered as very substantial, for which as noted above he has not provided any explanation, but for the merits of the intended application, which is of most importance in considering whether to extend time, I propose to first consider the Board’s Second Decision when merits would become more apparent.

The Board’s Second Decision 8 December 2017

46.In this Decision the Board had set out all the information provided by the Applicant of his situation during the material periods and his reasons for the late filing of his Notice of Appeal in paragraphs 21 – 27 of its decision, of which can essentially be summarized as follows:

(a)     The Applicant was arrested by police on 15 February 2017 for possession of dangerous drugs and was detained at Lai Chi Kok Remand Centre;

(b)     He was subsequently convicted and sentenced to prison in Tai Lam Correctional Institution;

(c)     Upon his discharge from prison he was then transferred to CIC on 19 August 2017 where he has since been detained;

(d)     Hence he never received the Director’s letter dated 22 March 2017 inviting him to submit additional facts relevant to his BOR 2 Claim sent to his former address in Sham Shui Po;

(e)     He also never received the Director’s subsequent Further Decision dated 6 April 2017 sent to his former address at Sham Shui Po;

(f)     It was only later on 22 August 2017 when the Applicant enquired from CIC with the Immigration Department that he subsequent received the Director’s Further Decision on 28 August 2017 and was told that he had a fresh 14 days to appeal up to 11 September 2017;

(g)     It was only then when the Applicant forwarded his documents to JCHK to seek their help with his appeal to the Board;

(h)     JCHK however were not permitted to visit the Applicant in detention and hence were unable to take further instructions form him;

(i)     That the Applicant having never received the Director’s letter inviting him to submit additional facts for his BOR 2 Claim and hence was denied the opportunity to do so before the Director’s Further Decision which was therefore unfair;

(j)     That there is a risk of further compounding the unfairness beyond lawful bounds if the Applicant were to be denied an extension of time and the ability to appeal the Director’s Further Decision; and

(k)     Given these reasons and the gravity of the matters raised in the Applicant’s non-refoulement claim that ti would be unfair, unjust or otherwise unreasonable not to extend time for his Notice of appeal accordingly;

(l)     The Applicant and JCHK were also unaware of the Board’s First Decision served on 26 January 2017; and

(m)     It is not clear if the Board refused the Applicant’s appeal against the Director’s First Decision with full knowledge that the Applicant was in prison at the relevant time and thus unable to respond to the relevant enquiries raised.

47.The Board then proceeded to make the following findings in its decision regarding such information and the reasons of the Applicant for the late filing of his Notice of Appeal:

“39. I find that a claimant in a non-refoulement claim is not permitted to simply sit back and leave it up to the TCAB and DOI to search him out. I also find that street sleeping is not a residential or a correspondence address. I also find that even if a claimant is acting in person, ignorance of the law is no excuse.

40. I also find that remand centres/prisons were prepared to timely forward the Claimant’s important letters and documents to addresses whilst he was detained, as can be seen from the correspondence history above.

41. I also find that the Claimant’s arrest and subsequent conviction for possession of dangerous drugs was not an excuse.

42. I also find that the Claimant had failed to update the DLS of his contact details when expecting the DOI’s first decision, despite the DLS having represented him throughout his original claim. He had also failed to keep in touch with the JCHK for many months until he sent his instructions to them in September 2017 from his place of detention. (see TCAB decision dated 26^th January 2017.)

43. The Claimant was I find, well aware that he was only being permitted remain in Hong Kong whilst his non-refoulement claim was being processed and that it was his duty to follow up on his claim with due diligence.

44. I found the Claimant had absolutely no excuse for –

(i) not keeping in regular touch with the TCAB and DOI after 30^th December 2016 when he last spoke to the TCAB;

(ii) not timely following up on his claim and acting within statutory time limits;

(iii) not performing his statutory duty in keeping the DOI and the TCAB advised of his change of address.

45. Whilst I find that the Claimant had not known about the DOI’s second decision and its service until he received the DOI’s memo dated 28^th August 2017 enclosing a copy of the same, I also find that the Claimant would not suffer prejudice if he were not allowed to proceed with the late filing of his Notice of Appeal/Petition against the DOI’s second decision because:-

(a) the Claimant had not raised any suggestion in his claim or in his additional grounds in support of this application that he would be subjected to the imposition of a death sentence by any court or tribunal (legal or otherwise) if refouled to Nigeria;

(b) the Claimant’s claims (including the additional claims put forward in his letter dated 14^th November 2017, excepting for the royalty connection risk) relating to his risks of death have all already been fully canvassed before the DOI in the DOI’s first decision;

(c) the Claimant had already through his own fault lost his right of appeal/petition against the DOI’s first decision (as I find this door is already closed to him) and therefore the DOI’s first decision stands;

(d) the DOI in his letter dated 22^nd March 2017 (para.7), had asked the Claimant “to submit additional facts … I found that there had been no suggestion of any misunderstanding of what “all applicable grounds” mean in the JCHK letter dated 7^th September 2016 …

(e) the DOI had reviewed the Claimant’s known facts again with reference to BOR2 in his decision dated 6^th April 2017;

(f)  the Claimant’s royalty connection risk had first been raised in his letter dated 14^th November 2017.” 

46.      I also find that there was prejudice to the DOI and TCAB arising from …  

47.      I find after considering everything before me that the Claimant had no credible and valid explanation for the undue delay, nor did he have any cogent reason for it. He had not behaved sensibly and reasonably during the processing of his claim until after the time of his Detainee Submission Sheet dated 22^nd August 2017. I further find, even after giving due consideration to the Claimant’s being a foreigner in Hong Kong, to his acting in person, to this being a torture claim and to his prompt action in submitting a Notice of Appeal/Petition to the DOI’s second decision after receiving the DOI’s memo dated 28^th August 2017, that these factors did not in any way excuse or provide a good reason for the Claimant’s undue delay and they did not provide a special circumstance.”    

48.The Board then found that the service by the Director of his Further Decision on the Applicant on 6 April 2017 by post to his then last known address at Sham Shui Po could be presumed to have been properly effected, and that it could not be displaced by the fact that the Applicant no longer resided there for the following reasons:

“51. I find that if there was a credible and valid explanation and a cogent reason for the delay in rebutting this presumption, the presumption could be displaced and good service disproved. However, I also find that this right could be lost if there was indiscipline and an undue delay in applying to rebut the presumption without good reason.

52. I also find that given the independent government departmental set up in Hong Kong, it could not be suggested that the DOI had constructive notice of possible defective service of his second decision because of an address change until, at least, the time the Claimant was placed into immigration detention on 19^th August 2017.

53. I also find that the DOI’s memo to the Claimant dated 28^th August 2017 enclosing a Notice of Appeal/Petition following the Claimant’s request, could not be deemed to be an admission by him of defective service of his decision dated 6^th April 2017.

54. I find after considering all the aforesaid matters, that whilst the Claimant had proved that he had not received the DOI’s second decision, he had also failed to to provide cogent grounds and good reason to justify his undue delay in attempting to rebut the presumption.

55. I also find for the same reasons already given, that there would be no prejudice to the Claimant by this decision, but that there would be prejudice to the DOI and to the TCAB.

56. I find in conclusion that the presumption of service of the DOI’s letter dated 6^th April 2017 (second decision) could not be displaced by the Claimant for the reasons I have given.”    

49.It seems clear to me from the above that notwithstanding that it had accepted that the Applicant never in fact received those mails from the Director including the Further Decision sent to his former Sham Shui Po address as he was at all material time in prison/detention and was therefore not aware of the Further Decision until 22 August 2017 when he wrote to the Director and only received the Further Decision on 28 August 2017, the Board still found that the Director’s presumed service on the Applicant could not be displaced essentially for the reasons that the Applicant should have kept in regular contact with both the Director and the Board after he last spoke to a staff of the Board on 30 December 2016, and that he had a history of such failings regarding his similar delay with his earlier appeal against the Director’s First Decision ([59] of the Board’s Second Decision).

50.This thus brings me to this obvious question: After the late filing of his Notice of Appeal against the Director’s First Decision had been refused by the Board on 26 January 2017, which therefore did not proceed to the second-tier of the screening process of his claim and thus would have brought an end to his USM claim, and having shortly thereafter been arrested, put in prison and in detention, how would the Applicant be expected to know that his BOR 2 Claim would have later become a live issue that he should have kept in regular contact with the Director or the Board when he never received the subsequent letter of 22 March 2017 from the Director inviting him to submit additional facts relevant to BOR 2 Risk and therefore could not have responded, and that as a result the Director would go on to make the Further Decision on 6 April 2017 rejecting his BOR 2 Claim which he again never received as he was still in detention?

51.Had the Board accepted that the Director’s Further Decision was only properly served on the Applicant on 28 August 2017, the Applicant would not be out of time when his Notice of Appeal was sent via JCHK on 7 September 2017 and was received by the Board on 11 September 2017, and even if it were indeed outside the 14-day period, it would still be only 1 – 2 days late which cannot on any view be regarded as significant.

52.For these reasons, I am of the view that it is reasonably arguable that the Board’s reasons for finding that the Applicant was late in filing his Notice of Appeal was in the circumstances Wednesbury unreasonable and/or that it had failed to apply high standards of fairness in its determination that there was no special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.

53.Furthermore, upon finding that the Applicant had been late with his Notice of Appeal, the Board did proceed to consider the merits of his substantive claim by commenting on both decisions of the Director (see [64] – [66] of the Board’s Second Decision), but it appears that in doing so it failed to take account of the Applicant’s grounds of appeal set out in JCHK’s letter attached to his Notice of Appeal, as it was required to do so in the consideration of the merits of the appeal as held by the Court of Appeal in Re Qasim Ali as noted above.

54.Even if it had, and I do not see any such ‘comment” on those grounds, the Board having never formally assessed and determined the Applicant’s USM claims in its First Decision when it refused to allow the Applicant’s late filing of his Notice of Appeal against the Director’s First Decision, and without having made any finding of fact as to the Applicant’s case, it could not have made a proper and fair assessment of the merits of his appeal against the Director’s Further Decision regarding the Applicant’s BOR 2 Claim.

55.For these reasons I am also of the view that it is reasonably arguable that the Board had failed to properly and sufficiently consider the substance of the Applicant’s non-refoulement claim as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance.

56.Which then bring me back to the earlier point that the Applicant would have been seriously out of time if he were to challenge the Board’s First Decision in refusing the late filing of his Notice of Appeal against the Director’s First Decision, but for the reasons given above, I am of the view that fairness should in the circumstances allow him to do so, and that his such intended application have met the threshold for leave to be so granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

57.In the premises, I extend time and grant leave to the Applicant to apply for judicial review of both decisions of the Board on the grounds stated above, and in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, I direct that the Applicant shall file an originating summons 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 9^th day of November 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