Beydou Magagi Seybou v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2318/2019

[2024] HKCFI 643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2318 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 To:

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted;

2.  Extension of time to file the leave application refused; and

3.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 12 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 27 July 2018 (the “Decision”) refusing his application for late filing of a Notice of Appeal/Petition (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 1 December 2016 (the “Further Notice”). The Director is named as the proposed respondent.

2.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the Notice and Further Notice were superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. The only decision which the Applicant may seek leave to judicially review is the Decision of the Board. Hence, the Board should be the proper proposed respondent. Leave is therefore granted to amend the Form 86 by substituting the Board for the Director as the proposed respondent.

The background

3.The Applicant is a Nigerien national. He last entered Hong Kong on 2 February 2013 and overstayed since 17 February 2013. On 27 March 2013, he surrendered to the Immigration Department. He had applied for asylum to the United Nations High Commissioner for Refugees (“UNHCR”), but his claim was closed by UNHCR upon the commencement of the Unified Screening Mechanism (“USM”) in Hong Kong. His claim was assessed under all three applicable grounds then available under the USM, ie Torture Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4] grounds. His claim was rejected by the Director’s Notice of Decision dated 8 June 2016 (the “Notice”). His claim was further assessed under BOR 2 Risk ground which subsequently became available, but was also rejected by the Director’s Further Notice dated 1 December 2016.

4.On 4 May 2017, the Applicant filed the NOA against the Further Notice. He did not appeal the earlier Notice. On 27 July 2018, the Board issued its Decision refusing the late filing. The Applicant now seeks leave to judicially review that Decision.

5.There are two late events: the Applicant’s late filing of the NOA against the Director’s Further Notice and his late filing of the leave application to review the Board’s Decision refusing his late filing of the NOA. For the purpose of this leave application, it is sufficient to deal with the second late event. The leave application was filed one year and fifteen days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made nine and half months out of time. Extension of time for filing the leave application is required.

6.In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[6], per Litton NPJ. The delay of nine and half months in this case is so substantial that leave may be refused on this ground alone, unless the Applicant has a reasonable and credible explanation for the delay.

7.The Applicant was invited by this Court’s directions dated 16 November 2023 to file a statement within 14 days explaining the reasons for the delay. He did not respond. At the hearing, the Court explored the reasons for the delay with him. He explained that he never received the Board’s Decision because he was held in prison custody. Further dialogue with him revealed that he stayed in an address in To Kwa Wan when he filed the NOA in May 2017. He was held in prison custody from 25 December 2017 until 2019 for having used a credit card belonging to another person. The Decision of the Board was issued on 27 July 2018 while he was in prison custody. He admitted he had not informed the Board of his change of address by reason of his imprisonment. He presumed that the Immigration Department would inform the Board of his imprisonment when he failed to report his recognizance. That was an over optimistic speculation on his part. That explained why he did not receive the Decision. As was held by the Court of Appeal in Karamjit Singh[7] and Re Hasmi Rizwan Imran[8], it is the applicant’s obligation to keep the court informed of his means of contact. If he does not, he has to bear the consequence which his failure brings. The Applicant has no reasonable explanation for this very inordinate delay of nine and half months before filing this leave application.

8.The above finding is sufficient for the Court to refuse his leave application. The delay which attracted the above comment from Litton NPJ was three months. Such inordinate delay evinces a lack of intention to prosecute the claim and possibly also its underlying merits. The longer the delay, the stronger is such inference. In the absence of a reasonable explanation, the delay of more than nine months in the present case is so inordinate and inexcusable that extension of time to apply must be refused.

Conclusion

9.Leave to amend the Form 86 naming the Board as the proper proposed respondent is allowed. Leave to file the amended leave application out of time and the application to apply for leave to apply for judicial review are refused.

Dated 29^th day of February 2024.

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