Kansiime Kabatesi Peace and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2334/2019

[2025] HKCFI 1307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2334 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 1st Applicant in open court and the attendance of 2nd and 3rd Applicants being excused;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

Introduction

1.This is the Applicants’ application by Form 86 filed on 13 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 3 June 2019 (the “Decision”) refusing their application for late filing of their Notice of Appeal/Petition (the “NoA”) dated 24 February 2017 against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 January 2017 (the “Notice”) refusing their non-refoulement application.

Background

2.The Applicants are Ugandan nationals. The 1^st Applicant last entered Hong Kong as a visitor on 10 April 2010, and was permitted to stay until 10 May 2010. On 30 April 2010, she was arrested by the police and was subsequently convicted of the offences of soliciting for immoral purpose and breach of condition of stay by taking up unapproved employment. She was sentenced to six weeks’ imprisonment. She was referred to the Immigration Department upon her discharge from prison on 10 June 2010. She made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) on the same day. She was released on recognizance on 16 July 2010.

3.She gave birth to the 3^rd Applicant, on 16 April 2012 in Hong Kong and raised a Torture Claim on his behalf on 14 September 2012. The 2^nd Applicant, arrived in Hong Kong as a visitor on 9 November 2012 and overstayed since 10 December 2012. On 17 December 2012, the 1^st Applicant raised a Torture Claim on her behalf. In due course, their Torture Claims were assessed under the four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Their claims were rejected by the Director’s Notice, which contained an express reminder that an applicant aggrieved by the Notice must file a NoA within 14 days from the date of that Notice.

4.Then the Applicants filed the NoA against the Notice on 24 February 2017, which was 16 days out of time. By its Decision, the Board refused their application for late filing of the NoA. The Applicants now apply for leave to apply for judicial review of that Decision.

5.The Applicants had been advised by this Court’s letter dated 9 December 2024 of the requirements under Order 80, rule 2 of the Rules of the High Court and the need to arrange legal representation for the 2^nd and 3^rd Applicants either by private lawyer or by the Director of Legal Aid (the “said letter”). However, they were not legally represented at the hearing.

Legal representation

6.The 1^st Applicant is the mother of the 2^nd and 3^rd Applicants and represents them in this leave application. At the hearing, she was asked if she had received the said letter advising her of the need to arrange legal representation for her children. She replied in the affirmative. Seeing that the 2^nd and 3^rd Applicants are not legally represented, she was asked if she had applied for legal aid. She also replied in the affirmative. When asked about the result of her application, she said there was no result as she had not applied but had only made enquiries about legal aid service. When asked when did she make the enquiries, she said she could not remember but said it was made about a month before this hearing. Judging from the fluency of her oral English, the flow of her dialogue with the Court and her response, the Court finds she had no misunderstanding of the questions asked of her.

7.Then, she was asked why she had not applied for legal aid. She replied, rather surprising, that she only received the letter from the Court on the previous Friday informing her to attend court today. That letter is the notice of hearing dated 5 March 2025. She denied ever receiving any letter from the Court advising her about the need for legal representation. She was obviously retracting her answers given in the preceding paragraph, in particular that she had received the said letter dated 9 December 2024 advising her the need to arrange legal representation for her children. The answers she gave to the Court’s questions in the preceding paragraphs shows unambiguously that she was responding to the Court’s questions about arranging legal representation and as a result of which she made enquiries with the Legal Aid Department last month before she received the notice of hearing. The Court rejects her assertion that she had not received the Court’s advice about arranging legal representation for her children. It finds that she had no intention to make such arrangement for the 2^nd and 3^rd Applicants.

8.The Court finds that the 1^st Applicant was not prosecuting the leave application regularly. She was dragging her feet. Having regard to the finding below that there are no merits in the leave application, the Court considered it futile to adjourn the hearing to give her another opportunity to arrange for legal representation. The principle of proportionality and procedural economy requires this Court to proceed with the hearing and to treat the absence of legal representation as a mere irregularity which does not render the proceeding a nullity.

The Applicants’ explanation for the delay to the Board

9.Section 37ZT(1) of the Immigration Ordinance (the “Ordinance”) provides that if a NoA is filed after the expiry of the 14-day period, it must include an application for late filing which must include a statement of the reasons for failing to file the NoA within that period and must be accompanied by any documentary evidence relied on in support of the reasons referred to above. The reasons for the failure as stated by the Applicant in Section 5 of her NoA is that she was not feeling well during that period of time and was admitted twice to hospital. She submitted a sick leave certificate from Kwong Wah Hospital for 7 February 2017 and another attendance certificate from the same hospital certifying that she attended a gynaecology follow up consultation on the afternoon of 15 February 2017. The certificates do not certify admission to hospital, not to mention for the entire period or a substantial part of that period. These are all the evidence the 1^st Applicant had submitted to the Board in her application for late filing.

The finding of the Board

10.The Board was obviously aware of the provisions under section 37ZT of the Ordinance. It took note of the warning in the Notice that an applicant aggrieved by the decision in the Notice must lodge his appeal within 14 days of the issue of the Notice and that the Applicants must have as a matter of course been explained of the same by the duty lawyer then representing them. As the Notice was dated 24 January 2017 and the NoA was lodged on 24 February 2017, the time limit for filing the NoA fell on 8 February 2017 after allowing for delivery by post. The NoA was lodged out of time by 16 days.

11.The Board accepted the two certificates submitted by the 1^st Applicant which certified one day’s sick leave and half a day’s attendance in hospital for consultation. It found in paragraph 18 of the Decision that:

“The documents submitted by the [Applicant] do not disclose any medical reason which would have prevented her from filing an appeal/petition within time.”

The applicable legal principles

12.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds of Application

13.The Applicant did not advance any specific grounds of application in her Form 86. In her supporting affirmation, she said the reason for her late filing of the NoA was because she received the Notice late. She said:

“… [she] received the information as per the decision of the Appeal Board late and thus delayed the process of [her appeal] for a judicial review against that decision.”

This explanation purports to explain the delay in filing this leave application. On the fact, the Applicant has not been late in filing her Form 86. Her explanation is irrelevant.

14.At the hearing after the legal principles in the preceding section was explained to her, she submitted that the Board made an error of law in the Decision by failing to take into account that she was suffering from a medical condition. She took issue with the Board’s finding in paragraph 18 of the Decision quoted above. She said she had continuous bleeding caused by a gynecological problem which required blood transfusion and she was hospitalized during the fourteen days’ period, but she could not produce such medical evidence because the Hospital Authority refused to provide her with a report about her medical condition without proper authority. She said she had to apply for the medical report through the Justice Centre which took one month. When asked to produce the medical report which she said she had obtained through the Justice Centre, she produced the same two certificates which she had previously submitted to the Board together with her NoA. She could not produce any documentary evidence to support her allegation. Her allegation is simply incredible and unsupported by documentary evidence which she was expected to be able to produce. Besides, her account is wholly contrary to common sense and is inherently implausible. She being the patient, there was no reason why the hospital would refuse to disclose her medical report to her but would disclose it to her agent. If the hospital would give her a medical certificate certifying one day’s sick leave for her and another certificate certifying she had attended a consultation on a particular afternoon (but not sick leave), there was no reason why it would not issue her a sick leave certificate giving her sick leave or certifying she attended the hospital for blood transfusion or was hospitalized during any part of the fourteen-day period. This Court does not accept her assertions. She has failed to establish the factual basis to support her claim about error of law.

15.Next, she argues that the Board committed procedural unfairness by making the Decision without giving her an opportunity to attend before the Board to explain her delay or difficulties. The short answer to this ground of application is that section 37ZT(2) of the Ordinance not only mandates but requires the Board to make a preliminary decision without a hearing whether to allow the late filing of the NoA. The Board had not been in breach of any rules of procedural fairness. Indeed, the Board had taken a step further and considered the Notice but found it does not disclose any special circumstances by reason of which it would be unjust not to allow the late filing of the NoA.

16.The Applicant has no complaint about irrationality.

Overall scrutiny

17.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to late filing of NoA, correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s explanation and tested it against the documentary evidence she produced and the incontrovertible factual matrix. It was on that basis that the Board found the Applicant’s explanation could only account for one and half days’ delay but not the entire period of 16 days’ delay. It also examined the Notice and considered the factual basis of the Applicants’ claim as outlined therein but found it did not disclose any special circumstances by reason of which it would be unjust not to allow the late filing of the NoA. Then, applying the law applicable to late filing including section 37ZT of the Immigration Ordinance to the above finding of fact, the Board came to the conclusion that the Applicants had no reasonable explanation for the late filing. Hence, it refused her application for late filing. These are mixed finding of facts and of the law. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of showing a reasonable explanation for the late filing. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

18.This Court notes that the 1^st Applicant has submitted a schedule of general holidays for 2017 and highlighted the three days’ holiday for the lunar new year, ie 28, 30 and 31 January 2017. Seemingly, she wished to argue that these three days should not be counted as part of the period of delay. These were public holidays. But that did not mean she was prevented for that reason from working on her appeal. In any event, even taking those three days into account, she could not account for the entire period of delay.

Conclusion

19.In conclusion, the Court finds that there is no merit in this leave application. The Applicant’s intended judicial review has no prospect of success. Accordingly, their leave application is refused.

Dated the 8^th day of April 2025

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