Okoro Godson Ugochukwu v. Torture Claims Appeal Board

HCAL 2661/2018

[2021] HKCFI 3726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2661 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:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 44-year-old national of Nigeria who arrived in Hong Kong on 18 December 2010 using a passport under a different name issued by Guinea-Bissau when he was arrested by custom officers for drugs trafficking for which he was subsequently convicted and sentenced to prison for 2 years, and upon his discharge from prison and was referred to the Immigration Department for deportation, he revealed his true identity as a national from Nigeria and raised a torture claim on the basis that if he returned to Nigeria he would be harmed or killed by the terrorist group Boko Haram for losing the drugs which he was forced to carry for them to Hong Kong as a result of his arrest and/or by the Nigerian authorities for supporting the separatist organization Indigenous People of Biafra (“IPOB”) for the independent state of Biafra which has been branded as a terrorist group by the Nigerian government, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a native of the indigenous Igbo people in Nigeria.  After leaving school he worked in various business in Nigeria, and actively supported IPOB for an independent state of Biafra for the indigenous Igbo people by regularly attending their meetings and rallies.

3.In 2006 he left Nigeria for Thailand where he met a group of Nigerians who in 2010 offered him money to carry illegal drugs to Hong Kong, and so he did on 18 December 2010, but upon arriving at the Hong Kong airport he was arrested for drugs trafficking for which he was subsequently convicted and sentenced to prison for 2 years, during which he was informed by his family in Nigeria that those Nigerians who instructed him to bring drugs to Hong Kong were in fact from the terrorist group Boko Haram and had been looking for him in Nigeria as they suspected that he had absconded with their drugs, and had murdered one of his sisters for refusing to inform of his whereabouts, and also threatened to kill him if he was found.  Hence upon his discharge from prison in 2012 and was transferred to the Immigration Department for deportation, he raised a torture claim of fear of being tortured and killed by those Boko Haram people upon his return to Nigeria.      

4.After his torture claim was rejected by both the Director of Immigration (“Director”) and the Torture Claims Appeal Board (“Board”), the Applicant then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer as he was then in a second term of imprisonment after he was earlier on 13 August 2014 arrested by police again for drugs trafficking for which he was convicted on 5 June 2015 and was subsequently sentenced to prison for 6 years and 4 months, during which he learnt that the Nigerian government had branded IPOB a terrorist group and had been going after their supporters, a risk which he also feared and relied upon for his non-refoulement claim if refouled to Nigeria.       

5.By a Notice of Decision dated 12 March 2018 the Director rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his perceived enemies upon his return to Nigeria as his credibility had been damaged or undermined by his refusal to attend any screening interviews before an immigration officer without valid reasons, that he had never personally experienced any ill-treatment from the Boko Haram people or the Nigerian government in the past, that state or police protection would be available to him 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 190 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 Anambra or Delta States where it would be difficult if not impossible for him to be located.

7.On 23 March 2018 the Applicant from his prison in Hei Ling Chau Correctional Institution lodged an appeal to the Board against the Director’s decision, but it was returned to him by the Board as his Notice of Appeal was found not to have been signed by him at Section 6 of the Notice.

8.On 23 April 2018 the Applicant again by hand via the Correctional Services Department returned the Notice of Appeal duly signed to the Board, to which he also annexed a letter addressed to the Board as follows:

“I Mr Godson Ugochukwu Okoro, with (RBCZ 2001291/14) I do received a letter from your department on this day of 18^th April 2018.

Sir, with all due respect I have accept my mistake not to sign my name and signature in “Section 6” also is not intentional. Please Sir, kindly start to proceed on my appeal claim…”

9.The Board however treated the Notice of Appeal as being filed outside the 14-day period under Section 37ZS(1) of the Immigration Ordinance, and pursuant to Section 37ZT(2) of the Ordinance proceeded to decide as a preliminary decision without a hearing whether to allow its late filing, and by a written notice dated 5 October 2018, the Board refused to allow the late filing of the Applicant’s Notice of Appeal having applied the principles stated in the UK Court of Appeal decision in The Secretary of State for theHome Department v Begum [2016] EWCA Civ 122 of the need to enforce compliance with rules set out in the Ordinance and the need for this type of application to be conducted efficiently and at proportionate cost, and upon finding that the Applicant had failed to give any reason or explanation for his late filing, and that there were no special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.     

10.On 23 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forth the following grounds for his intended challenge:

(1)   that the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim in that their decisions were not reasonable or fair;

(2)   that the Director and the Adjudicator failed to recognize the Applicant’s right to life under BOR 2 Risk or his right to be protected from extra-judicial killings which he may face if refouled to his home country;

(3)   that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his claim as well as his appeal;

(4)   that this was clearly a case of unfair attitude shown by the Director which is itself enough to render the decision void;

(5)   that the Director failed to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem which various human rights organizations have complied reports which stated testament with the Applicant’s assertions; and

(6)   that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision.  

11.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics as to how they applied to his case, and above all, none of them appear to me to be of any relevancy to his intended challenge of the Board’s decision in refusing to allow the late filing of his Notice of Appeal that his non-refouleemnt claim has in fact never been assessed by the Board.

12.Given the serious implications of the Board’s decision which in effect denied the Applicant of the right to the second part of the two-tier enhanced screening process of his non-refoulement claim under the Unified Screening Mechanism (“USM”) in place since early March 2014, high standards of fairness require that the Board’s reasons for its decision be scrutinized by the Court for any error of law or irrationality or procedural unfairness in such process. 

13.Before doing so, it would be helpful to remind myself of then relevant provisions of the Immigration Ordinance (applicable at that time prior to its latest amendments in 2021) for the filing of the notice of appeal by a claimant to the Board against a decision of the Director, starting with Section 37ZS which provided as follows:

“(1) A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of appeal within 14 days after notice of the decision is given to the person unless late filing of the notice is allowed by the Board under section 37ZT(3).

(2) A notice of appeal must be –

(a) in a form specified by the Chairperson of the Appeal Board; and

(b) accompanied by a copy of the notice of the decision being appealed against.”

14.If the notice of appeal is filed after the expiry of the 14-day period referred to in Section 37ZS(1) above, then Section 37ZT stipulated (again applicable at the time) 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.”  

15.I now turn to the Board’s factual findings regarding the Applicant’s Notice of Appeal as set out in the decision, starting with the time period which he would have to file his Notice of Appeal:

“1. The Notice of Decision was dated 12 March 2018. By adding the statutory 14-day period allowing the Appellant/Petitioner (hereinafter referred to as “the Appellant”) to file his Notice of Appeal/Petition (“the Notice of Appeal”) and 2 days for service takes the filing date to 28 March 2018.

2.   The Notice of Decision was sent to the Appellant care of the Duty Lawyer Service.”   

16.The Board would have been aware from the Director’s decision that the Applicant was then serving his drug trafficking prison term at Hei Ling Chau Correctional Institution, and as the Applicant so stated also in his Notice of Appeal, and it was from the prison that the Notice of Appeal was sent via the Correctional Services Department to the Board, as stated in its decision:

“3. The Appellant first sent the Notice of Appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) by hand via the Correctional Services Department on 23 March 2018. However, the Appellant had not filled in and signed Section 6 “Declaration by Appellant/Petitioner” of the Notice of Appeal. It was returned to the Appellant by post for completion.

4. This was again sent to the Board by hand via the Correctional Services Department on 23 April 2018. This time the Appellant filled in Section 6 of the Notice of Appeal which was signed and dated 18 April 2018.

5. This meant that the Notice of Appeal submitted by the Appellant was:

• Late, because it was submitted after the statutory period allowed.”

17.The Board upon applying the principles in SSHD v Begum supra then found the Applicant to have given no reason or explanation for his late filing of the Notice of Appeal, and therefore refused to allow its late filing as follows:

“13. The principles that litigation must be conducted efficiently and at proportionate cost, and that compliance with rules and practice directions must be enforced are legal principles with universal application. These principles are as important here in Hong Kong as they are in the United Kingdom.

14. The Appellant gave no reasons for late filing of his appeal in the original lodging of his appeal. He corrected this in a re-filing, stating that it was not his intention and he also stated that he received the appeal claim form from the Duty Lawyer on 16 March 2018.

15. All the matters given in section 5 of the Notice of Appeal by the Appellant and in his letter attached to the Notice of appeal have been taken into consideration, as well as other relevant matters of fact within the knowledge of the Board.

16. Section 37ZV of the Ordinance provides …

17. The Appellant does not provide an explanation of the late filing of his appeal and, indeed, in Section 2B “Grounds of Appeal/Petition” he states that “ … the Decision notice that I received by hand from the Duty lawyer Service on 16 March 2018”, i.e. well in time before the filing deadline.

18. 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.

19. As the Appellant has not provided any explanation for the late filing of his application the Board cannot be satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.

20. The late filing of the Notice of Appeal is disallowed pursuant to section 37ZT(4) of the Ordinance.”    

18.It seems therefore clear to me that, and as recorded by the Board, the Applicant was not late when he first lodged his Notice of Appeal on 23 March 2018, albeit unsigned at Section 6 of the Notice which is arguably at worst a procedural irregularity, and that it was after it had been returned to him in prison for his signature, and was re-sent again by hand via the Correctional Services Department to the Board when it was on 23 April 2018 that the Notice of Appeal was found to be “Late, because it was submitted after the statutory period allowed”.

19.I am therefore surprised by the Board’s finding that “the Applicant has not provided any explanation for the late filing of his application”, and while the Applicant may not have specifically done so in Section 5 of his Notice of Appeal, of which he never admitted to have been late in the first place, it is clear that the Board was well aware of the reason why his Notice of Appeal was late in the sense that the duly signed version was returned to the Board after the expiry of the 14-day period.

20.Even if the Applicant had indeed been late with the filing of his Notice of Appeal in the strict sense of Section 37ZS(1) of the Ordinance, it is in my view reasonably arguable that the Board’s refusal to allow its late filing is not Wednesbury reasonable in light of the circumstances of the case:

(1)  That the Applicant was to the Board’s knowledge then in prison with the inevitable delay with incoming and outgoing mails for inmates as well as inconvenience or difficulties in assessing assistance for legal matters and documentations;

(2)  That the service of the Director’s decision dated 12 March 2018 on the Applicant by his former lawyer from DLS took 4 days until 16 March 2018;

(3)  That the Applicant first filed his Notice of Appeal by hand via the Correctional Services Department with the Board on 23 March 2018 which was only 7 days after the service of the Director’s decision and well within the 14-day period;

(4)  That according to the Applicant he only received the Notice of Appeal returned by the Board for his signature on 18 April 2018, and which was never challenged by the Board;

(5)  That the returned Notice of Appeal signed and dated by the Applicant on the same day of 18 April 2018 took another 5 days to be returned to the Board again by hand via the Correctional Services Department, of which the Board never made any enquiry as to why it took so long to arrive;

(6)  That there was never any suggestion by the Board that the Applicant had been derelict in anyway with his return of the signed Notice of Appeal to the Board as soon as practicable under his circumstances.   

21.Furthermore, despite having directed itself to the 3-stage enquiry alluded to in SSHD v Begum, the Board did not appear to have moved to evaluate all other relevant matters of fact within its knowledge before exercising its discretion to decide whether it would be unjust not to allow the late filing of the Applicant’s Notice of Appeal as required under Section 37ZT(3) of the Ordinance, which include the merits of the appeal regardless of the procedural breaches or the lack of explanation therefor, as held by the Court of Appeal 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.          

22.For these reasons I am of the view that the 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.

23.In the premises, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds that (i) the Board’s finding that the Applicant had failed to give reason or explanation for the late filing of his Notice of Appeal is Wednesbury unreasonable; (ii) the Board failed to take account of the merits of the appeal as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance; and (iii) the Board failed to apply high standards of fairness in the exercise of its discretion to decide whether there are special circumstances in the Applicant’s case that would make it unjust not to allow the late filing of his Notice of Appeal.

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

Dated the 9^th day of December 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