Sulayman K. Ceesay v. Torture Claims Appeal Board

HCAL 280/2019

[2022] HKCFI 802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 280 of 2019

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
	cconsideration 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 41-year-old national of The Gambia who arrived in Hong Kong as a visitor on 21 August 2014 with permission to remain up to 19 November 2014 when he did not depart and instead overstayed, and on 24 November 2014 he surrendered to the Immigration Department and subsequently raised a non-refoulement claim on the basis that if he returned to The Gambia he would be harmed or killed by the Gambian government for assisting his friend in criticizing the government on political issues in the social media.  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Mansa Konko, Lower River Division of The Gambia.  After obtaining his university degree he worked as an accountant in the Gambian Postal Office while also pursuing a post-graduate degree in journalism. In 2013 he took a year off from his job to work as a freelance journalist to assist his friend who worked in a radio station criticizing the government over its various policies and exposing official corruptions.

3.One day in early 2014 he learnt that his friend had quietly left the country, and later when he was able to contact the friend, he was told that his friend left to avoid being arrested by the government, and that he was advised to also leave the country to avoid being arrested which was imminent, and so in August 2014 the Applicant departed The Gambia for China, and from there he later travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 26 May 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

5.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 The Gambian government upon his return to The Gambia as low due to the absence of any past ill-treatment from the authorities, that the Applicant had never encountered any personal or real risk of harm nor being ill-treated, arrested, detained or imprisoned by the Gambian government, nor is there any evidence that he had been a target of the Gambian government or that he would be subjected to any risk of harm upon his return to the Gambia, and that reliable and objective Country of Origin Information (“COI”) show that there have since been significant political changes to The Gambia after the then dictator and President Jammeh was defeated in the December 2016 election and had fled the country and gone into exile, and that the newly elected President Barrow has since ordered reforms of the government to promote freedom and democracy in the country, and also set up a Truth and Reconciliation Commission to investigate abuses committed under the former regime to make appropriate reparations for victims that there would not be any risk to the Applicant for his past involvement against the former government upon his return to The Gambia, as well as reasonable internal relocation alternatives for him to move to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

6.On 12 November 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal.

7.It would be of note that in his Notice of Appeal, the Applicant disclosed that he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”), and in Section 5 he gave his reason for his delay as “Depression – CSD Medical Records Tong Fuk Correctional Institution”, and to which he also attached a letter of the same date claiming to have filed an appeal earlier on 20 June 2018 but as he had not heard from the Board for months, he therefore filed a second one on 12 November 2018, and in Section 2 of his Notice of Appeal, he also provided 2 pages of the grounds of his appeal.  

8.By a Decision dated 16 January 2019, the Board refused to allow the late filing of the Notice of Appeal upon finding that it had been late by more than 1 year 4 months, that such delay was a serious and significant failure of the Applicant to comply with the rules which he ought to have been aware as they had been included in the notice attached to the Director’s decision when the Applicant was then still represented by the DLS, that his stated reason for his delay due to his depression was not supported by any medical evidence, that his detention at the Tong Fuk Correctional Institution was not a sufficient reason for his such serious delay, and that there were no other matters known to the Board or revealed by the factual basis of the Applicant’s claim which might amount to special circumstances which might make it unjust not to allow the late filing of his Notice of Appeal.

9.On 29 January 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation he just stated that the Board’s decision was unfair and unreasonable but without providing any details or particulars as to how it was so, nor did he request any oral hearing for his application.  

10.However, given the serious implication of the Board’s decision which in effect denied the Applicant of the right to the second tier of the enhanced screening process of his non-refoulement claim under the Unified Screening Mechanism (“USM”), high standards of fairness require that the Board’s reasons for refusing to allow the late filing of his Notice of Appeal be scrutinized by the Court for any error of law or irrationality or procedural unfairness in the Board’s decision.

11.In its decision the Board stated its consideration of the Applicant’s application for late filing of his Notice of Appeal and its reasons for refusal as follows:

“15. The Appellant’s reason for late filing was because of depression. I noted that an appeal form was provided together with the Director’s Notice of Decision when it was served on the Appellant care of the DLS on 26 May 2017. The final paragraph in the Director’s Notice of Decision reminded the Appellant that if he is aggrieved by the foregoing decision, he may lodge an appeal/ a petition, and the appeal/petition will be determined by the Torture Claims Appeal Board/Adjudicator(s) of the Non-refoulement Claims Petition office delegated with the authority of the Chief Executive to handle such appeals/petitions. He was also reminded that he must file his notice of appeal/petition with the enclosed form accompanied by a copy of the notice within 14 days from the date of the notice. The address for the notice of appeal/petition was also expressly stated to be that of the Torture Claims Board/Non-refoulement Claims Petition Office at … The Director’s Notice of Decision served on the Appellant had expressly stated that the Appellant must file his notice of appeal/petition within 14 days of the date of the Notice of decision, and an appeal form accompanying the Notice of Decision was provided to the Appellant, and the address for filing the appeal/petition was also clearly shown and stated in the Director’s Notice of Decision. It was also noted that the Appellant had legal representation form the publicly funded DLS, and the Director’s Notice of Decision was served on him care of the DLS. No application for extension of time to file the notice of appeal/petition was received from him or from the DLS. No medical certificate was adduced by the Appellant. He asked to refer to his medical records at Tong Fuk Correctional Institution. He did not give any detail of his illness and no information was provided as to when and how long he was detained in Tong Fuk Correctional Institution. He was however receiving medical treatment during his incarceration at the Correctional Services Department. His reason for late filing that he was suffering from depression did not really explain how his depression had caused him to file his Notice of Appeal 1 year 4 months and 29 days late. In the circumstances, a bare statement from the Appellant that he suffered from depression when he was in Tong Fuk Correctional Institution would not be sufficient reason for him to file his Notice of Appeal late. In any event, his late filing of the Notice of appeal for 1 year 4 months and 29 days would show that he had not promptly dealt with the submitting of the Notice of Appeal, to have it filed within the prescribed time limit.

16. Following the principles and methodology in the United Kingdom Begum case, I found, firstly, that a delay of 1 year 4 months and 29 days in filing an appeal against the Notice of Decision is a serious and significant failure to comply with the rules.

17. Secondly, I do not find the Appellant’s reason for late filing acceptable to explain why he filed his Notice of Appeal 1 year 4 months and 29 days late. He had therefore not given an acceptable explanation why he submitted the Notice of Appeal 1 year 4 months and 29 days late. In all the circumstances, the Appellant would have no good reason for the breach.

18. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

19. There were no other matters known to me or revealed by the factual basis of the Appellant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.”

12.While the Board was certainly entitled to find the Applicant’s delay of more than 1 year 4 months extremely serious and unacceptable, and that even if the Applicant, as he so claimed in his letter attached to the Notice of Appeal, had indeed filed his first appeal earlier on 20 June 2018, of which the Board did not appear to have referred to at all, it would still have put his delay no less unacceptable at more than 1 year, and that in the absence of any medical evidence, the Board was also entitled to reject his alleged depression as a good reason for such serious delay, although it seems that the Board was aware that the Applicant did receive some sort of medical treatment during his incarceration at the Correctional Services Department, and of which one may argue that the Board should have made further enquiry with the relevant authorities so as to at least clarify whether it had anything to do with the Applicant’s alleged depression, but what is much more relevant and important is that the Board did not take into account of the merits of the Applicant’s appeal, of which the Court of Appeal has held to be part of the relevant matters of fact within its knowledge as required under Section 37ZT(2)(b) of the Ordinance, as the law then was before its subsequent amendments, in its consideration of whether by reason of special circumstances that it would be unjust not to allow the late filing of the Notice of Appeal.

13.In Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, in giving the judgment of the Court, Lisa Wong J explained:

“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.”

14.In the premises, and for the reasons given, it is in my view reasonably arguable that the Board in its decision to refuse the late filing of the Applicant’s Notice of Appeal, it also failed to do so, and accordingly I grant leave to the Applicant to apply for judicial review of the Board’s decision on the basis that it failed to take account of the merits of his appeal when refused to allow the late filing of his Notice of Appeal.

15.I am of course mindful of the fact that, as noted above, subsequent to the Court of Appeal’s decision in Re Qasim Ali, on 1 August 2021 significant legislative amendments were made to the relevant requirements under Section 37ZT of the Ordinance that the Board shall thereafter only need to take account of the statement of reasons stated by an appellant in an application for late filing of the notice of appeal and the evidence relied on in support of such reasons (see the amended subsection (2)), and also with significant amendment to subsection (3) as well, which may then lead to an argument under the doctrine of futility for leave application made prior to such amendments but with leave for judicial review granted thereafter, as is the present case.

16.Given the important observations and rationale for its findings by the Court of Appeal in Re Qasim Ali as noted above, and the serious implications of applications of this nature, I am of the view that any issue of futility which may arise at the hearing of the application for judicial review should be more appropriately argued and dealt with there and then.  

17.Accordingly, I direct that the Applicant shall within 14 days of this decision file an originating summons for judicial review of the Board’s decision on the ground stated above, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 18^th day of March 2022.

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