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HCAL 2354/2018
[2022] HKCFI 429
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2354 OF 2018
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Cadnan Foose Maxamad |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative
Respondent |
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P Li:
1. Extension of time for application for leave to apply for Judicial Review be refused; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant last arrived at the airport of Hong Kong on 5/2/2013 without any document. He was refused entry. He was granted recognizance on 1/3/2013. He filed a non-refoulement claim on 1/4/2014.
Background
2. The applicant was born on 20/11/1985 in Balcad District, Somalia. He had education for 12 years. He was a Muslim. He was ethnic Gabooye—a minority group which was discriminated in various social aspects. In his native village, Abgaal was the majority clan.
3. Around January 2000, the Abgaal family (“Khalid”) offered to buy the farmland of his father. Khalid was a rich and powerful family. His father initially refused. The Khalid family threatened to kill his father. Later, his father changed his mind for fear of his safety but the Khalid family refused to pay. They forced his father to leave. Eventually, his father left the farmland and started his blacksmith business nearby. The family was safe from then onwards.
4. In 2010, he became a good friend of a female classmate (“Nagma”) who came from an Abgaal family. Her father was a member of the local clan militia and notorious for harassing minority clans.
5. In 2011, while he and Nagma were on the way home, they met the brother of Nagma. Her brother was angry and assaulted him for 10 minutes. He sustained injuries and bruises all over his body. He needed 3 stitches for his wounds. He did not report the incident to the police as they were of the Abgaal clan. They would turn a blind eye to this. Neither the elders of his clan nor the Muslim leaders could do anything. He stopped seeing Nagma since then.However, Nagma insisted to continue the relationship and they became lovers.
6. In November 2012, Nagma’s father forced her to marry a cousin. She proposed that they ran away but the applicant declined. He stopped seeing Nagma. In December 2012, Nagma committed suicide on the night of her wedding.
7. Two weeks later, Nagma’s father and uncles came to his house armed with machine guns. He was not at home. They accused him of using black magic on Nagma. They opened fire killing his brother and father. They then left. Subsequently, his mother took him to hide at his aunt’s house nearby.
8. Later, his mother paid an agent who accompanied him to Dubai. The agent took away his Somalian passport and told him to board a transit plane to Hong Kong. His mother had since sold the family house and fled to Kenya with other siblings. He did not go with them as Nagma’s family would pursue him in Kenya.
9. It was impossible to relocate in Somalia as the militia set up checkpoints everywhere. He could not survive being of an ethnic minority. It was difficult to find a job.
10. The applicant feared that he would be killed or harmed by Nagma’s family if refouled.
The decision of the Director
11. The Director dismissed his claim on 14/1/2016. The Director found that there was no real risk of harm from Nagma’s family. The reasons were as follows:
(a) Nagma’s family attacked the applicant as they accused him of using black magic on Nagma. They objected to his relationship with Nagma. It was not because of his Gabooye status. It was a private dispute. There was no evidence of any official involvement.
(b) The applicant did not suffer any ill-treatment amounting to a minimum level of severity. He was safe during his school years. His family was safe after his father was forced out of his farmland. There was no evidence that his access to education, employment and movement were restricted by the Somali authorities.
(c) His mother had not reported the incidents to the police. The applicant was able to leave Somalia without problem. He was not targeted.
(d) There was widespread corruption and non-functioning legal system. Minority groups were discriminated in various aspects. Violence against minorities were common. The Judicial system was ineffective and denied Somalis the right to justice. The UNHCR considered that person belonging to minority clans might have a need of international protection.[1] On the other hand, the Federal government had arranged with the Jubba Administration and the Interim South West Administration to establish regional police. The UNSOM and AMISOM had joint effort to provide technical advice and training of 600 police officers.[2] Despite the above, the Director concluded that there was reasonable State protection.
(e) He was able to travel to Mogadishu before departing Somalia. This contradicted his assertion that there were checkpoints set up by local militia.
(f) Clan discrimination is no longer a problem in Mogadishu according to the COI. There was a Gabooye community in Mogadishu. There was an economic boom in the area. It was reasonable for him to relocate there.
12. The Director dismissed the claim on all grounds on 14/1/2016 and 29/6/2017.
The decision of the TCAB
13. The applicant filed the Notice of Appeal on 15/3/2016. He was out of time by over 6 weeks. The applicant explained that he gave the wrong number to his lawyer. He only received the decision of the Director on 28/1/2016. His lawyer declined to represent him. He did not appeal within 14 days.
14. The TCAB tried to contact the applicant for further reasons for the late filing. He failed to supply any further information on the delay.
15. The TCAB considered that the applicant should have checked with his lawyer from time to time to ascertain the progress of his case. Despite he received the decision on the last day of the appeal period, he waited for more than 6 weeks before lodging the appeal. There was no special circumstance to render it unjust to disallow late filing.[3] The adjudicator refused late filing of the notice of appeal on 8/9/2017.
16. There was no appeal in relation to the further decision of the Director, in relation to BOR 2, dated 29/6/2017.
Judicial Review
17. The applicant filed the leave application for judicial review in this case on 25/10/2018. He was nearly 11 months out of time.
18. In Re Qasim Ali, the Court of Appeal held that in assessing whether to allow late filing, the Board should consider the merits of the appeal regardless of the procedural breaches or the lack of explanation. This was the requirement under s. 37ZT (2)(b) of the Immigration Ordinance.[4]
19. Before deciding whether to allow late filing, the adjudicator did not consider the merits of the applicant’s claim. Leave should have been granted for the TCAB to consider the merits of the case according to S.37ZT before its amendment.
20. However, as of 1/8/2021, section 37ZT (2) was amended. The TCAB may only consider the reasons and the supporting evidence in the Notice of Appeal. There was no need to consider “any other relevant matters of fact within the knowledge of the Board ” as before the amendment. This amendment in effect removed the basis of Re Qasim Ali.
21. Had leave been granted in the present case, the TCAB, which dealt with the late filing subsequently, wound be bound to apply the amended version of s. 37ZT (2). The principle in Re Qasim Ali would no longer be applicable. There is no need to consider the merits of the intended appeal. This issue of considering merits would be academic. [5] I would have refused leave for the intended judicial review.
22. The applicant did not file the leave application within 3 months. He was out of time for nearly 11 months. He did not apply for extension of time. He did not explain the delay.
23. In considering whether there is good reason for the extension of time, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [6]
24. There was undue delay. He did not explain. In my view, there is no good reason to extend time for the leave application.
25. Given the analysis above, I also refuse leave for the intended judicial review.
Dated the 10th day of February 2022
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(Mike Mak)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 10 February 2022
Cadnan Foose Maxamad
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10 February 2022
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3301/16/3/106/SM2
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1301/14 &
RBCZ 9002257/17
(Formerly RBCZ 1747/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] There were other categories. For detail see Decision of the Director dated 14/1/2016, §27.
[2] UNSOM is United Nations Assistance Mission in Somalia. AMISOM is African Union Mission in Somalia.
[3] Section 37ZT (3), CAP 115.
[4] CACV 547/2018, §§25-26.
[5] The principle in R v Secretary of State for Health and Social Care and another, [2021] 1 ALL ER 780, at §§39—42 considered.
[6] H v Director of Immigration [2020] HKCFA 22, para. 37; AW v Director of Immigration CACV 63/2015,
§§26—27.
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