Mfundo Richard Barnabas v. Torture Claims Appeal Board

HCAL 517/2021

[2025] HKCFI 3107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 517 OF 2021

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 Bruno Chan:

1.   Leave to apply for Judicial Review be granted;

2.   The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.   The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Tanzania who arrived in Hong Kong on 19 April 2018 as a visitor with permission to remain as such up to 18 July 2018 when he did not depart and instead overstayed, and on 30 July 2018 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Tanzania he would be harmed or killed by the Tanzania authorities and/or the ruling political party Chama Cha Mapinduzi (“CCM”) as he supported their rival the Chadema Party.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Arusha, Tanzania. After leaving school he worked in a local casino in Dar es Salaam, and supported the Chadema Party regularly attended their local meetings and activities, and eventually became a youth leader in Dar es Salaam responsible for recruiting youth members for the party.

3.After CCM won the general election in 2015 and became the ruling party, their newly elected President started issuing orders for the arrest and imprisoning members and supporters of their opposing rival Chadema Party, and as a result many of the Chadema Party members and supporters had been detained, tortured and even killed.

4.In October 2016 the Applicant was informed by a friend that the authorities were coming after him, and so he fled from Dar es Salaam for Korogwe, and in December 2016 he departed Tanzania for China, and from there he travelled to Hong Kong on 19 April 2018 where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 June 2019 and attended screening interview before the Immigration Department with legal representation.         

5.By a Notice of Decision dated 8 August 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk that his feared treatment would materialize upon his return to Tanzania as low due to the absence of any past ill-treatment from either the Tanzanian authorities or the CCM people, that there is no reliable evidence of any adverse interest in him or that he had been targeted by the government or authorities other than some hearsay from a friend and that the Applicant was able to leave the country without any problem, that state protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Tanzania with a large population of 55 million people spread across a vast territory of more than 940,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

7.On 21 September 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was filed outside the 14-day period after notice of the decision was given to him as required by Section 37ZS(1) of Part VIIC of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by its decision dated 3 February 2021 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

8.In its decision the Board found that the Director’s decision was sent on the same day of 8 August 2019 to the Applicant’s then lawyer, that the Applicant had had up to 24 August 2019 to file his appeal to the Board, that his Notice of Appeal was only received by the Board more than 1 year later on 21 September 2020, that such delay was very substantial, that the Applicant’s explanation of never having received the decision in the mail was not accepted as credible, while his subsequent arrest by the police in March 2020 for some criminal offences and for which he was later convicted and sent to prison though true cannot be accepted as valid justification for his delay given the fact that by the time of his arrest in March 2020 he was already some 7 months out of time for lodging his appeal, and that there were no special circumstances that would make it unjust not to allow the late filing of his notice of appeal.    

9.On 13 April 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application other than just repeating his claim as before.

10.Nevertheless, given the seriousness of the issue at hand and the implication of the Board’s decision which denied the Applicant of the right to the second-tier screening of his non-refoulement claim by the Board under the Unified Screening Mechanism (“USM”) due to a procedural breach (albeit a serious one), the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for refusing the late filing of the Applicant’s appeal.

11.From its decision as noted above, the Board was in my view certainly entitled, based on the facts before it, not to accept the Applicant’s stated reasons for his serious delay, but it seems that in the consideration of any other relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance, as the law then was and as it had directed itself at [8] of the decision, the Board failed to take account of the merits of the Applicant’s appeal, which was held to be relevant by the Court of Appeal, as a matter of fact almost 2 years earlier, in Re Khan Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, as Lisa Wong J in giving judgment of the Court in the latter case stated:

“23. … even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”  

12.In the premises, and as it is apparent that the Board did not take account of the merits of Applicant’s, or for that matter the substance of his non-refoulement claim, I am of the view that his intended application for judicial review of the Board’s decision is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

13.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the ground that the Board failed to take account of the merits of the Applicant’s appeal or the substance of his non-refoulement claim as part of the relevant matter of fact within the Board’s knowledge under Section 37ZT(2)(b) of the Immigration Ordinance, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.   

Dated the 31^st day of July 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