Tshikangala Kitenge Pierrot v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 777/2019

[2023] HKCFI 374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 777 of 2019

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 oral submissions by the Applicant in open court;

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

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 16 June 2017 refused; and

2.  The application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 16 June 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 20 March 2019 is late.[1] The deadline for the application is 16 September 2017. The delay is about one and a half year. 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, I shall deal with his application on paper.

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

The applicant

4.The applicant is a national of Democratic Republic of Congo (“DRC”). He entered Hong Kong on 19 February 2011 as a visitor and was permitted to stay until 26 February 2011. He did not depart and had overstayed since 27 February 2011. On 12 April 2011, he surrendered himself to the Immigration Department. On 19 May 2011, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the DRC government or Mr. Joseph Kabila, the president of DRC, due to his connection with a human rights non-governmental organization named “La Voix des Sans Voix” (“VSV”).

5.According to the applicant, he had been assisting his father in VSV’s activities since 2009. His father was the vice president of VSV. Yet, Kabila despised the VSV and often targeted and harassed or even assassinated the VSV members. On 1 June 2010, the applicant officially became a member of the VSV. That day, VSV was also in the process of gathering people to denounce the fight in eastern region of the DRC. The applicant believed that Kabila saw this as an opportunity and sent someone to kill the leader of the VSV. During that incident, the applicant’s father disappeared and he believed that his father was also killed. The murderer was arrested and sentenced but they never found his father’s body. Meanwhile, after his father’s disappearance, his mother disposed all his documents in relation to VSV.

6.Three or four months after, some police officers visited the applicant’s house and attempted to locate some documents allegedly taken away by his father in relation to the denouncement of the fight. They assaulted the applicant’s family members and also ill-treated the applicant so as to find the said documents. Out of fear, the applicant escaped to Kinshasa. He opted to stay in the DRC because his name was given to the police and he wanted to wait until things cooled down before leaving the country. During his hiding, he encountered some police officers. He was able to escape by lying to the police. Thereafter, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 1 September 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

7.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”).

8.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk. In elaboration, the Director found that (i) his evidence about his father’s position in the VSV was inconsistent with the country of origin information (“COI”) [14]-[15]; (ii) there was no evidence that he was targeted by the DRC authorities [16]; (iii) it was illogical that he could not remember the names of persons who allegedly killed the leader of the VSV and his father [17]; (iv) there was no evidence about his father’s membership with the VSV [18]; (v) the ill-treatments inflicted on him and his family members were considered to be mere misconducts by individual police officers [19]; (vi) state protection would be available to him [20]-[22]; and (vii) internal relocation was a viable option [23]-[25].

9.For reasons set out at the Notice of Further Decision dated 27 July 2017, the Director also found that the applicant’s right to life would not be violated and rejected his claim on BOR2 risk (the “Director’s Second Decision”).

The Board’s Decision

10.The applicant only appealed the Director’s First Decision to the Board. However, he only filed his notice of appeal/petition with the Board on 7 October 2016 and was therefore out of time. The Board thus proceeded to consider whether to allow his late filing of notice of appeal/petition.

11.The applicant explained that the Director’s First Decision only reached to him on 14 September 2016. However, the Board found that the explanation was not persuasive [13]-[18]. The Board further considered his grounds of appeal and the merits of his non-refoulement claim. In particular, the Board examined the Director’s First Decision and concluded that the Director had relied on comprehensive COI to refute the crux of the applicant’s claim, namely his father’s role within the VSV. It also rejected the applicant’s explanation that the COI was manipulated by the DRC government [22]. As a result, 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

12.The applicant has filed Form 86 dated 20 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, he said it is dangerous for him to return to his country. The government murdered his father. He had worked for the organization, Voice of the Voiceless. The government hides all the secret of genocide.

DISCUSSION

14.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 deadline of his application is on 16 September 2017[2]. The delay is about one and a half year. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. The question before this Court is whether the Board was right to refuse extending time for the applicant to file his notice of appeal in accordance with the law and whether its decision complies with the public law requirements.

17.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.”

18.The applicant was late for filing his notice of appeal with the Board. The Board rejected his explanation for being late. The Board had considered the relevant materials before it and had taken into consideration of the applicant’s allegation by reference to the COI. It rejected the applicant’s allegations. There is no valid reason to challenge the Board’s Decision.

19.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 15^th day of February 2023.

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