Uba Chidiebere Henry v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1285/2019

[2024] HKCFI 854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1285 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:

1.  The extension of time for the application for Judicial Review be refused; and

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

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 11 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision. Time expires on 11 May 2019. His application was filed on 14 May 2019, which is only 3 days out of time. This issue will be dealt with below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), 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, aged 33, is a Nigerian. He entered Hong Kong illegally by boat on 10 December 2016 and he surrendered himself to the Immigration Department on 23 January 2017. The applicant made a non-refoulement claim on 27 March 2017. The claim was made on the basis that, if refouled, he would be harmed or even killed by his kinsmen in his village because he and his family switched from traditional idol worship religion to Christianity.

5.According to the applicant, he came from a tribe family that worshiped idol. In around 2006, his mother, followed by the rest of the family members, switched to Christianity. The kinsmen in the village then started to harass and isolate them. On 24 December 2006, the applicant’s father, being the chief of the village, offered to return all the items in relation to idol worship, but was rejected by the kinsmen. His father was poisoned and died subsequently in 2007. After his father’s death, the kinsmen came to take all their properties away and treated them like slaves. One day in between 2012 to 2014, some groups of boys mocked the applicant after he came back from fishing. Being provoked, the applicant fought back, but was taken hostage by the group. The applicant was rescued by his brother after two or three days and he stayed at the house of his brother’s friend. Thereafter, the attack from the kinsmen continued. On one occasion, they even burnt down the house of his brother’s friend where the applicant had been staying. Meanwhile, his family members also fled elsewhere and the applicant did not know their whereabouts.

6.The applicant went to Lagos in 2015. He worked as a shop assistant for Mr Sunday and slept at the church at night. On 26 July 2016, a vehicle travelling at high speed knocked the applicant down. He fell unconscious and was hospitalised for a month. Meanwhile, the applicant received a life threatening note and he was advised by Mr Sunday to leave Nigeria because his life was in danger. He therefore left for China on 3 December 2016 and arrived on or about 5 December 2016. Eventually he sneaked into Hong Kong on 10 December 2016. He did not maintain contact with his family members and had no idea of their whereabouts.

7.The applicant was of the view that he could neither seek help from the police nor could he relocate internally within Nigeria because he was a member of Indigenous People of Biafra, a terrorist group declared by the Nigerian government. The government was after members of the Indigenous People of Biafra nationwide.

8.Details of the applicant’s story are set out in paragraph 6 of the Director’s Decision dated 31 July 2018 (“the Director’s Decision”).

The Director’s Decision

9.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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low frequency and intensity of past ill-treatment from the kinsmen indicated that the applicant did not face a real and imminent risk of harm upon his return to Nigeria [15]-[16]; (ii) state protection will be available to him upon his return [18]-[21]; (iii) internal relocation is viable [17], [22]-[24] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[35] or Torture risk [36]-[37].

The Board’s Decision

11.The applicant appealed the Director’s Decision (dated 31 July 2018) to the Board. He filed his Notice of Appeal on 31 August 2018. Under section 37ZS of the Ordinance, time will expire on 14 August 2018. He did not provide any reason for his delay. The Board had written to the applicant, inviting him to provide within 7 days further information and supporting documents as to the late filing reasons. The applicant did not respond to the letter.

12.Having regard to the applicant’s failure to provide any reason for the late filing and that his grounds of appeal were merely a recitation of his claims in the Non-refoulement claim form, the Board found it would not be unjust to disallow the applicant’s late filing. They therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

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

14.In his affidavit in support of his application, the applicant said that he did not receive the Board’s Decision as he was being detained in Lai Chi Kok detention centre. He received the notice on 15 August 2018. With the help of the welfare officer, he filled the form. He gave it to his wife for submission to the Board. His wife told him the form was submitted on 19 August 2018. His has been residing in Po Tei Road, Kam Tin Yuen Long. He received letters by hands only.

DISCUSSION

15.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. I shall consider the merits of the applicant’s case.

16.The question for this Court is whether the Board was right not to extend time for the applicant to file his notice of appeal because of his delay and lack of reasonable explanation.

17.The Board held that as the applicant had received the Director’s Decision on 31 July 2018, he therefore should file the NOA to the Board on or before 7 August 2018. As the applicant filed his NOA on 31 August 2018, it held that the applicant was 23 days out of time [20].

18.The statutory 14-day time limit for appealing a decision by the Director to reject a non-refoulement claim is prescribed by s 37ZS(1) of the Immigration Ordinance (Cap 115), which provides (and provided at the time in 2018):

“37ZS. Notice of appeal

(1)  A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of appeal within 14 days after notice of the decision is given to the person unless late filing of the notice is allowed by the Board under section 37ZT(3).”

19.It seems that the Board’s computation of time for appeal to the Board is inconsistent with the statutory provision. The time for the applicant to file his NOA should expire on 15 August 2018 and the delay is therefore 16 days. Nevertheless, the applicant was late in the filing of the NOA.

20.The Board cited section 37ZT of the old version before its revision in 2021. At paragraph 8e.of the Board’s Decision, the Board said:

“The Board must decide as a preliminary decision, without a hearing, whether it is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing. In reaching that state of satisfaction, the Board only take account of the late filing reasons and other relevant matters of fact within its knowledge – section 37ZT(2) and (2), paragraph 9.2 and 9.3.”

21.In Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, in a case where the applicant was late in filing his notice of appeal to the Board and he had given no reason for such delay, the Court of Appeal held,

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

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.”

22.The Board had considered the overall justice of the case. The Board said at paragraph 21:

“So as to have regard to the overall justice of the case, I have considered too the grounds of appeal advanced by the Appellant in the NOA and the merits of his non-refloulement claim as set out in the Decision. However, I am not assessing the Appellant’s non-refoulement claim. I am referring to the merits only so as to have regard to all of the information before me. It appears to me the grounds of appeal are largely a recitation of his claims in the NCF. The merits of his non-refoulement claim are insufficient to weigh in favour of the exercise of my discretion to allow the late filing.”

23.The Board had already taken into consideration the Director’s Decision in relation to the merit of the applicant’s claim. It came to its conclusion that the merits of the applicant’s claim were insufficient to weigh in favour of the exercise of its discretion to allow the late filing.

24.The Board did not set out why it came to such conclusion. This is because the Board had stated it clear that it was not assessing the applicant’s non-refoulement claim. It was not allowed to do so under the law before leave was granted to the applicant to file his NOA. Therefore, the merits of the claim were those in the Director’s Decision. It will be for the applicant to state his reasons to challenge the Director’s Decision. The Board said that the NOA was only a recitation of the applicant’s claim in the NCF.

25.In the circumstances, the Board agreed with the Director that there was no merits in the applicant’s claim. I consider that the Board was entitled to make such conclusion.

26.The applicant’s reasons in paragraph 14 do not assist him. Under section 37ZV of the Ordinance, a notice by the Director may be served by sending it by post addressed to the last known address provided by the applicant [37ZV (1)(b)(i)] and the notice sent by post is presumed, in the absence of evidence to the contrary, to have been served on the second working day it was so sent [37ZV(3)]. There is no reason not to accept the Board’s evidence that the NOA was filed on 31 August 2018. Even accepting the applicant’s evidence that his wife submitted the NOA to the Board on 19 August 2018, the NOA was still late as the deadline was on 15 August 2018.

27.The applicant fails to show that he has a realistic prospect of success in his intended judicial review of the Board’s Decision.

CONCLUSION

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

Dated the 3^rd day of April 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