Fofana Amadou Aba v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1942/2018

[2021] HKCFI 3689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1942 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W.  Lung:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decisions dated 6 December 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 14 September 2018 is late.  I shall deal with this issue below.

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall consider his application on the papers.

The applicant

3.The applicant is a citizen of Gambia.  He entered Hong Kong as a visitor on 26 July 2014 but overstayed.  He surrendered to the Immigration Department on 7 November 2014.  On 20 January 2015, he lodged a non-refoulement claim. 

4.The applicant claimed that, if refouled, he would be harmed or killed by members of Alliance for Patriotic Reorientation and Construction (“APRC”) and the police because he was a supporter of United Democratic Party (“UDP”).  According to the applicant, he joined UDP as it was founded by his maternal uncle who was a human rights lawyer.  In 2012, UDP and APRC members had a fight because of the general election.  The applicant was beaten up by supporters of APRC and suffered injuries.  However, when the police arrived, they only arrested UDP members.  Despite he was bailed out by his uncle, he still feared that his life was in danger.  As a result, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

5.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”). 

6.By Notice of Decision dated 9 September 2016 (“the Director’s Decision”), the Director refused his claim on Persecution risk, BOR3 risk and Torture risk for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed if he returned to Gambia was assessed to be low [10]-[13]; that state protection would be available to him [14]-[15] and that internal relocation was an option open to him [16]-[19].  In a Notice of Further Decision dated 28 July 2017, the Director also rejected his claim on BOR2 risk. 

The Board’s Decision

7.On 7 December 2016, the applicant filed a Notice of Appeal against the Director’s Decision to the Board.  He was late by around 3 months.  The Board considered the statutory requirement under section 37ZT of the Immigration Ordinance, Cap. 15 that the Board should consider preliminarily whether to allow the late filing.  It was guided by the three stages as laid down in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122. 

8.The Board considered the applicant’s reason for late filing at [13].  It found that the applicant failed to produce medical evidence to support his explanation of being sick [16].  The Board proceeded to state that it had:

“…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”.

9.As a result, the Board found that there was no special circumstances pursuant to section 37ZT(3) of the Ordinance that warranted the exercise of its discretion to allow the late filing. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 14 September 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he said that he disagreed with the Board’s Decision.

DISCUSSION

12.As mentioned in paragraph 1, this application is late.  In AW v.  Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  The delay is, of course, serious.

13.The issue before the Court is whether the Board’s Decision refusing to extend time for the applicant to file his Notice of Appeal was decided fairly in accordance with public law.

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13 (1) .… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The Board was entitled to find that the applicant was late in filing his Notice of Appeal and his explanation was not acceptable.

17.The Board relied upon the legal principles in the UK authority The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 (03 March 2016), which placed emphasis on the expeditious disposal of the proceedings, the overriding principle under the CPR of the UK. 

18.There are two observations in relation to the legal principles:

i.  CPR rule 3.9 of the UK practice does not apply in Hong Kong.  CPR and Civil Justice Reform in Hong Kong are not identical, at least on the objectives, one being overriding and the other underlying.  More importantly, Order 1A, rule 2(2) provides:

“In giving effect to the underlying objectives of these rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

ii.  the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“17.  Where a notice of appeal is filed out of time, s.  37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay. 

18.    …Where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.  …

20.    …It was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

19.By “the merits of the applicant’s case”, the Court of Appeal is obviously referring to the facts as alleged by the applicant in support of his claim and the circumstances relating to his claim.  All of these are in the Director’s Decisions, which should have been given to the Board by the Director under section 9(1)(a) of Schedule 1A of the Ordinance:

“Director to provide facts

(1) The Director must, as soon as practicable after receiving a copy of a notice of appeal served under section 8 of this Schedule, provide to the Appeal Board and the person who has lodged the appeal—

(a) if the decision being appealed against is a decision under section 37ZI(1)(b) rejecting a torture claim—

(i) a copy of the completed torture claim form relating to the torture claim in respect of which the decision was made; and

(ii)    a copy of the written record of any interview of the claimant conducted by an immigration officer in considering the torture claim; …”

20.The Board confirmed that it had considered all the circumstances of the case before making its decision of refusing extension of time for the applicant to file his Notice of Appeal.  The Court of Appeal in Khan Kamal Ahmed’s case considered that the circumstances should cover the merits of the case, which refer to the Director’s Decisions.  According to the Court of Appeal’s decision, the Board is bound to consider the Director’s Decisions before deciding whether it is just to refuse extension of time for the applicant to file his Notice of Appeal.

21.I find that the applicant has a realistic prospect of success in his application as there is no indication in the Board’s Decision that the Board had considered the merits of the applicant’s case.  Although the Court of Appeal’s decision precedes the Board’s Decision, in my view, since the decision bears on the law, it applies to the Board’s Decision as well.

CONCLUSION

22.I therefore extend time for the applicant to file this application and I also grant leave for the applicant to apply for his intended judicial review.  The applicant has to take out the originating summons within 14 days after the grant of the leave in accordance with Order 53, rule 5 of the RHC.

Dated the 15^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