Nazziwa Winnifred v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1286/2019

[2024] HKCFI 856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1286 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.  Extension of time for the applicant to file her application for leave to apply for judicial review of the Board’s Decision be granted;

2.  Leave for the applicant to apply for Judicial Review of the Board’s Decision be granted; and

3.  The applicant must issue the originating summons within 14 days from the date of this Order in accordance with Order 53, rule 5 of the RHC.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 6 December 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision. Time expires on 7 March 2018. Her application was filed on 14 May 2019, which is more than 2 months. 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 her 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 37, is a national of Uganda. She arrived in Hong Kong as a visitor on 28 March 2014 and was permitted to stay until 4 April 2014. On 3 April 2014, the applicant was arrested by the police for the offences of soliciting for an immoral purpose and breach of condition of stay. She was subsequently convicted and was sentenced to two months’ imprisonment. The applicant was discharged on 13 May 2014 and she lodged a non-refoulement claim on the same day. The claim was made on the basis that, if refouled, she would be harmed or even killed by her ex-boyfriend because she took away his land deed to borrow money.

5.According to the applicant, she first met her ex-boyfriend in 2008. They fell in love with each other in 2009 and cohabited in the same year. In around 2011, the applicant started her garment business. After two months, as she wanted to expand her business, she took her ex-boyfriend’s land deed to the bank as a security for a loan. In around late 2011 or early 2012, the applicant went bankrupt after her business deteriorated. She was therefore unable to repay the loan.

6.In 2012, after the applicant told her ex-boyfriend that she used his land deed to secure a loan from the bank, he started beating her whenever she was at home. There was even an occasion the applicant broke her toe after he pushed her down the stairs. The applicant did not seek medical treatment for her wounds, nor did she report the assault to the police.

7.Initially the applicant stayed at her neighbour’s home whenever her ex-boyfriend was around to avoid him. Later on, in around August 2012, she moved to her parents’ place. Since then, her ex-boyfriend kept threatening her over the phone. In around December 2012, the applicant heard from her neighbours that the bank had seized her ex-boyfriend’s house for repayment. On 11 April 2013, the applicant started travelling overseas including Hong Kong, to buy clothes for re-sale in Uganda. She last entered Hong Kong from Macau on 28 March 2014.

8.The applicant maintained contact with her family. She was informed by her sister that her ex-boyfriend threatened to kill her over the phone. The applicant considered internal relocation within Uganda not viable as her ex-boyfriend could trace her via her friends and relatives. She was also of the view that she could not seek protection from the police because they were corrupted and she had no money to bribe them. She also did not believe that they would offer her 24-hour protection.

9.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 8 February 2017 (“the Director’s Decision”).

The Director’s Decision

10.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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment from her ex-boyfriend is indicative of a small future risk of harm upon her return to Uganda [14]-[15]; (ii) state protection will be available to her upon her return [17]-[19]; (iii) internal relocation is viable [20] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [21]-[26], Persecution risk [27]-[31] or Torture risk [32]-[35].

The Board’s Decision

12.The applicant filed her Notice of Appeal on 6 April 2017 when she was supposed to appeal the Director’s Decision on or before 24 February 2017. The Board did not accept the applicant’s explanation that the lateness was due to her need for more time to provide the evidence. Her appeal was therefore dismissed and the Director’s Decision was confirmed.

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.The applicant did not raise any specific ground in support of her application. Nor did she explain her late application.

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 her notice of appeal because of her delay and lack of reasonable explanation.

17.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.”

18.The above authority has precedence over the UK Court of Appeal case The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122, which the Board relied upon in support of the Board’s Decision, because the laws of Hong Kong and the UK on case management are different. The most obvious difference is that the UK put the case management as the overriding legal principle whereas Hong Kong as the underlying legal principle. On this basis, the court has to put the merits of the case over the civil procedures. This Court is bound by the local Court of Appeal’s decision.

19.It is obvious that the Board had not considered the merits of the case. It did not refer to any materials before the Director or the Director’s Decision. This is an error in law.

20.The applicant has a realistic prospect of success in her intended judicial review of the Board’s Decision.

CONCLUSION

21.Accordingly, I extend time for the applicant to file her application for leave to apply for judicial review of the Board’s Decision. I also grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant must issue the originating summons within 14 days from the date of this Order in accordance with Order 53, rule 5 of the RHC.

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