Tiago Adao Herculano v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 836/2019

[2023] HKCFI 345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 836 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 Applicant being absent in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 9 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”) refusing to exercise its discretion to allow the applicant’s late filing of appeal/petition against the Director’s Second Decision as described 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.

The applicant

3.The applicant is a national of Mozambique. He was sent to Hong Kong on 16 March 2016 after a failed attempt to enter South Korea. On the same date, his legal representative indicated his intention to lodge a non-refoulement claim. By way of written representations dated 16, 17 and 18 March 2016, he lodged his non-refoulement claim. His claim was made on the basis that, if refouled to Mozambique, he would be harmed or killed by his paternal relatives, and, if refouled to Nigeria, he would be killed because the social unrest which killed his mother, siblings and friend in late 2015 to early 2016.

4.According to the applicant, his mother came from Nigeria and married his father in Mozambique. However, his father’s family disapproved of the marriage as his mother was a foreigner. They discriminated and excluded her. When the applicant was only three years old, his father died from illness. His mother then took him and his siblings to Nigeria where he stayed before he went to Lagos in early 2016. In October 2015, his elder sister Elizabeth returned to Mozambique. However, she was murdered by his father’s relatives. In early 2016, there was conflict between the Indigenous People of Biafra and the Nigerian government, during which the applicant’s mother and siblings were killed. Meanwhile, while he was in Lagos, his friend was also killed in a fight between northerners and southerners. Fearing that Nigeria was no longer safe, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 June 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

5.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”).

6.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR3 risk and Persecution risk as the level of risk of harm upon refoulement to either Mozambique or Nigeria was assessed to be low. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm from his relatives in Mozambique [12]; (ii) there was no evidence about the involvement of his relatives in the murder of Elizabeth [13]; (iii) the death of his mother and siblings in the shootout was merely an incident [14]; (iv) there was also no evidence that he or his friend was intentionally targeted in Lagos [15]; (v) the laws of Mozambique protected the applicant’s identity as a Mozambican national born out of an interracial or bi-national marriage [16]; (vi) state protection would be available to him [17]; and (vii) internal relocation was a viable option [18]-[24].

7.For reasons set out in the Notice of Further Decision dated 7 November 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

8.The applicant first appealed the Director’s First Decision to the Board. The Board considered the applicant’s claimed right of abode in both Nigeria and Mozambique. It accepted and assessed the alleged risk of harm in both risk States [26].

9.The Board recapped the applicant’s claim and considered the country of origin information (“COI”) [40]-[47]. The Board found that the COI showed that the Nigerian government was taking steps to ease the civil unrest which affected the citizens as a whole and the government was winning the battles against Boko Haram and the Biafrans; that the applicant’s evidence on his relatives’ inflicting harms on his family was based on hearsay evidence; that there was no evidence of state involvements in either States; that there was no evidence suggesting that the applicant was physically or mentally harmed; and that there was no evidence suggesting that the two governments would not offer protections to the applicant [56]-[72]. In any event, internal relocation was found to be available to the applicant [99]-[109]. As a result, for reasons set out in its decision dated 15 November 2016, the Board rejected the applicant’s claim on Torture risk, BOR3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision (the “Board’s First Decision”).

10.On 13 February 2018, the applicant filed his notice of appeal/petition against the Director’s Second Decision. He was out of time for more than two months. Thus, the Board proceeded to determine whether to allow his late filing.

11.The Board considered the length of delay to be serious and significant [16]. The applicant explained that, on 21 November 2017, he wrote to the Board asking for an extension of time for him to seek further legal assistance and to gather more evidence. Yet, he did not get any replies from the Board and hence the delay [17].

12.The Board rejected the applicant’s explanation as it was vague and lacked details. It also found that, if the applicant did not receive a prompt reply from the Board, he should have taken the steps to pursue his appeal [19]. Meanwhile, there was no record of the said letter posted by the applicant asking for an extension of time [21].

13.Since the applicant failed to provide cogent explanation for the delay, having considered all the circumstances, by way of the Board’s Second Decision, the Board refused to allow his late filing.

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

14.The applicant has filed Form 86 dated 26 March 2019 for leave to apply for judicial review of the Board’s Second Decision.

15.In his affifavit in support of his application, the applicant said that because he was not legally represented, the Board had reached the unreasonable decision. He was detained during the course of the Board’s Second Decision, he was not able to provide supportive evidence and he will make further submission to support his case.

DISCUSSION

16.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).

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

18.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.”

19.The question before this Court is whether the Board was, within the context of administrative law, correct to refuse extending time for the applicant to file his notice of appeal under the circumstances.

20.The delay of about 2 months in filing the notice of appeal with the Board is serious. The Board had considered the explanation given by the applicant for his delay. For the reasons given, the Board refused to extend time for the applicant to file his notice of appeal. The applicant said that he had applied for extension of time for filing his notice of appeal from the Board, but he had not received any reply from the Board. The Board stated in the Board’s Second Decision that there was no record of his request on the file. In any event, the applicant should proceed to prepare his appeal even if he did not have the Board’s reply. He cannot assume that his application must be approved. He may chase up the Board for a reply. But he did not do so. There is no evidence from the applicant that he was able to obtain legal service within a period of time. Nor is there evidence to show what documents he intended to produce to the Board for his appeal. In the circumstances, the Board cannot be held unreasonable to refuse to grant him the extension of time.

21.According to the Board’s First Decision, the applicant was present at the hearing. The fact that he might have been detained before the hearing, causing him to have no time to prepare his case should be an issue for the Board when he appeared before it. There is no record of such complaint. This ground will not assist the applicant’s application.

22.In any event, his appeal against the Director’s Second Decision is hopeless as his claim on BOR 3 risk has failed. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

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

CONCLUSION

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

Dated the 14^th day of March 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