Taylor George v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 691/2019

[2022] HKCFI 2752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 691 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
	consideration of the documents and oral submissions by the Applicant in open court.

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

  Leave to apply for Judicial Review of Torture Claims Appeal Board’s decision   

  dated 25 February 2019 be granted.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Liberia. He entered Hong Kong as a visitor on 10 August 2016 and was permitted to stay until 24 August 2016. He did not depart and had overstayed since 25 August 2016. On 17 March 2017, he was arrested for overstaying. On 19 March 2017, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the Vai people in the government as they wished to uproot his family.

5.According to the applicant, his family belonged to the Mandingo tribe. On 12 April 1980, his father assisted a military group led by Master Doe, who was of Krahn ethnic group, in taking over the government and killing the then president. His father became the captain of the army which fought against the Vai in the first civil war. The applicant fought in the second civil war from 1999 to around 2003 as a solider. In 2005, Ellen Johnson Sirleaf won the presidential election and continued to be in power until 2017. Since her father was a Gola, which was associated with Vai, she started to take action against those who fought against Vai in the civil wars. On 6 April 2016, around ten Vai people rushed into the applicant’s house and indicated that they wanted to take the lives of the applicant and his family as revenge. The applicant and his family were kidnapped and detained. They were also deprived of food and water and tortured. On day 3, the military people took the applicant’s family members and returned saying that all of them were killed. None of the applicant’s family returned. On day 5, the applicant was released by a woman in black military suit. After the escape, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 28 September 2018 by the Director (the “Director’s Decision”).  

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

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

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

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm from Vai was assessed to be low. In elaboration, the Director found that (i) there was no evidence showing that any government authorities sought to harm his family [12]; (ii) after his escape, he was able to stay in Liberia without being located by the kidnappers for four months [13]; (iii) state protection would be available to the applicant [15]-[17]; and (iv) internal relocation was a viable alternative [18]-[21].

The Board’s Decision

8.On 14 November 2018, the applicant filed the notice of appeal/petition to appeal the Director’s Decision. However, he was 29 days late [12]. In his explanation for the delay, the applicant stated that he informed the Duty Lawyer Service about his change of address. Nevertheless, the applicant failed to provide any documents supporting such assertion [13]. Further, he did not elaborate whether and when he was made aware of the Director’s Decision, what action he took to prepare and file the notice of appeal/petition and why he could only file the notice of appeal/petition on 14 November 2018 [17].

9.In these premises, the Board found that there was insufficient information for it to consider whether there were special circumstances to allow the late filing [18]. As a result, since the applicant failed to provide any cogent explanations for the delay, the Board refused to exercise its discretion to allow the late filing.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 12 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affidavit and the statement attached to Form 86 in support of his application, the applicant repeated his story on why he came to Hong Kong as mentioned in paragraphs 4 and 5 above.

DISCUSSION

12.The issue for this Court is whether the Board’s Decision of refusing to extend time for the applicant to file his notice of appeal in respect of the Director’s Decision comply with the public law requirements under the relevant authorities at the relevant time.

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

14.It is apparent that the Board, pursuant to section 37ZT of the Ordinance, refused to extend time for the applicant to file his notice of appeal is based upon the fact that he considered that there were insufficient facts to support the applicant’s reasons for his delay. There is no evidence that the Board had considered the merits of the applicant’s case by reference to the Director’s Decision, which the applicant should have submitted to the Board at the time of his application for filing of his notice of appeal, or it should be in the hearing bundle.

15.In Re Khan Kamal Ahmed [2019] HKCA 377, the Court of Appeal held:

“16. Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.

17. Where a notice of appeal to 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.

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.”

16.On the Director’s Decision, the Director held that there was no evidence showing that any government authorities sought to harm his family. This is inconsistent with the evidence given by the applicant. The Director had not made a decision on the credibility of the applicant’s evidence, therefore, his decision is subject to further investigation or consideration by the Board.

17.I note that section 37ZT of the Ordinance has been amended and is operative on 1 August 2021. The new section reads:

“Late filing of notice of appeal

(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 all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(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 the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)”

18.If the case is remitted back to the Board for re-consideration, either by the same Board or another Board, the case should be considered under the law before the enactment of the amended version of section 37ZT, which does not have retrospective effect.

19.The applicant succeeds to show that he has realistic prospect of success in his proposed judicial review.

CONCLUSION

20.I grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant shall issue an originating summons for his application within 14 days after this Order in accordance with Order 53, rule 5(5) of the RHC.

Dated the 6^th day of September 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