MATHEBULA SIPHO ABEDNEGO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2077/2019

[2024] HKCFI 3060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2077 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 Applicant in open court;

1.  Leave to apply for Judicial Review be granted; and

2.  The Applicant to file and serve an originating summons within 14 days from the date of this judgment.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Mathebula Sipho Abednego (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 8 July 2019 (“Board’s Decision”) when the Board refused his application for late filing of the Notice of Appeal (“NOA”) against the decision of the Director of Immigration (“Director”) dated 10 December 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a South African. He was born on 16 February 1980 in Tembisa, Johannesburg, South Africa. He received 14 years of education and had 13 years of working experience as a hawker.

The Claim

3.  The Applicant relied on the following facts for his claim. He dated a Muslim woman (“Isha”) in around 2014. Isha became pregnant with the Applicant’s baby in around early June 2017.

4.  Isha’s father (“AL”) called the Applicant in around late June 2017. The Applicant never met Isha’s family before, but he learnt from Isha that AL was an Imam and a difficult person. AL threatened to kill the Applicant for getting Isha pregnant.

5.  A few days later, five men broke into the Applicant’s house and attacked him with knobkerries. They said they were teaching the Applicant a lesson. The assailants left after seeing massive bleeding from the Applicant (in another version of this event given by the Applicant, he claimed that the assailants left after his neighbours came to rescue him).

6.  After this incident, the Applicant moved to live with his friend (“SI”) in Alberton, South Africa. SI helped the Applicant contacting Isha at the school in which she was studying. Isha told SI that AL threatened to kill the Applicant.

7.  In a night in around July 2017, the Applicant was on his way home after work when a man tapped his shoulder. The Applicant then saw five men running towards him with one of them carrying a knife. The Applicant screamed for help and managed to escape. The Applicant decided to flee to Hong Kong to avoid AL.

8.  The Applicant claimed that he would be harmed or killed by AL and his men if he were returned to South Africa.

Procedural history

9.  The Applicant arrived in Hong Kong on 17 August 2017 as a visitor. He was granted permission to stay until 16 September 2017. He overstayed and surrendered to the Immigration Department on 19 September 2017. By written representations of 8 and 11 June 2018, the Applicant lodged the Claim.

10.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

11.  By the DOI Decision, the Director refused the Claim. The Applicant intended to file an appeal/petition to the Board. He filed the NOA with the Board on 25 March 2019. The Board considered that the NOA was filed out of time. By the Board’s Decision, the Board refused the Applicant’s application for late filing of the NOA.

12.  On 22 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”).

The DOI Decision

13.  The Director noted that the low intensity and low frequency of past ill-treatment from AL and his men was indicative of a small future risk of harm upon the Applicant’s return. Further, the injuries the Applicant suffered from AL and his men were not serious. AL and his men had the opportunities to seriously harm or kill the Applicant but they refrained from doing so. This showed that AL and his men did not really intend to kill or seriously harm the Applicant. They only wanted to intimidate him.

14.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the South African government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant if necessary.

15.  The Director further found that internal relocation would be viable. If the Applicant moved to Durban, AL and his men would have great difficulty in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate to Durban and lead a normal life.

16.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

17.  On 25 March 2019, the Applicant filed the NOA.

18.  Section 37ZS(1) of the Ordinance provides to the effect that the Applicant who wished to appeal against the DOI Decision had to file the NOA within 14 days after notice of the DOI Decision (“Notice”) was given to him unless late filing of the NOA was allowed by the Board under section 37ZT(3) of the Ordinance.

19.  After considering the 14-day period from the date of the DOI Decision, the Board found that the Applicant was 2 months and 27 days late in filing the NOA (§11 of the Board’s Decision”).

20.  The Board applied section 37ZT of the Ordinance and the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme and held that the Board was required to decide, as a preliminary issue, whether to allow the late filing of the NOA.

21.  The explanation given by the Applicant for the late filing of the NOA was contained in section 5 of the NOA, where he stated that he did not receive the Notice until 23 March 2019. The Applicant claimed that he had to write to the Director on 15 March 2019 to obtain the DOI Decision.

22.  The Board was informed by the Director that the Notice was served to Duty Lawyer Service (“DLS”) (who represented the Applicant at the screening interview with the immigration officer) on 10 December 2018. On 14 December 2018, DLS informed the Director that they ceased acting for the Applicant and returned the Notice to the Director.

23.  The Board considered the actions taken by DLS to inform the Applicant of the Notice, which included 12 unanswered calls to the Applicant between 11 and 14 December 2018 and a letter to the Applicant’s last known address. The Board noted that in the NOA the Applicant made no mention about the unanswered calls or the validity of his last known address. It also noted that the Applicant used the same address when he wrote to the Director on around 15 March 2019.

24.  The Board found that the Applicant failed to establish that he had exercised all due diligence to file the NOA within the prescribed period but failed to do so because of circumstances beyond his control. The Board thus refused the Applicant’s application for late filing of the NOA.

Legal principles applicable to judicial review

25.  In a judicial review, the court does not step into the shoes of the decision makers.

26.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. … … The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

27.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

The Applicant’s case

28.  In the Form 86, the Applicant did not put forward any grounds for his intended judicial review.

29.  In the Supporting Affidavit, the Applicant only exhibited the Board’s Decision.

30.  The Applicant attended the court hearing on 3 October 2024 and confirmed that his telephone number and address had not been changed all along. He said that his telephone service plan had both voice mailbox and call waiting services. Thus, he would not have missed any calls but he had not received any unanswered calls or messages from DLS. He also said that he had not received the letter said to have been sent by DLS to him in December 2018.

31.  The Applicant said that he had no knowledge of the DOI Decision until he received the same in March 2019. He did not agree that he was late in filing the NOA. He did not recall that he had applied for leave to filing the NOA out of time by completing section 5 of the NOA. He submitted that as his safety and life was at stake, the Board should have considered the merits of his claim in any event.

Discussion

32.  There was no dispute that the Notice was sent together with the DOI Decision. Thus, in this discussion, reference to sending the DOI Decision includes sending of the Notice.

33.  Section 37ZT of the Ordinance which deals with late filing of notice of appeal has been amended on 1 August 2021. As the NOA was filed on 25 March 2019, the pre-amendment version of section 37ZT (“Old s37ZT”) is relevant to this application.

34.  Subsection (1) of the Old s37ZT provided that if a notice of appeal was filed after the expiry of the 14-day period referred to in section 37ZS(1) of the Ordinance, it had to include an application for late filing of the notice which had to include a statement of the reasons for late filing of the notice accompanied by all available evidence relied on in support of the reasons. This was done by the Applicant in this case. (See §12 of the Board’s Decision)

35.  Subsection (2) of the Old s37ZT provided that the Board had to decide as a preliminary decision without a hearing whether the Board allowed the late filing of the NOA in this case. This was what the Board had done by the Board’s Decision. The Board refused to allow the late filing of the NOA.

36.  Subsection (2) of the Old s37ZT further provided that in deciding whether to allow late filing, the Board might only take account of:

(a)  the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b)  any other relevant matters of fact within the knowledge of the Board.

37.  According to §12 of the Board’s Decision, the reason for late filing of the NOA provided by the Applicant was that he had not received the Notice until 23 March 2019, i.e. 2 days before the filing of the NOA.

38.  The Board made enquiries with the Director and DLS.

39.  The Director informed the Board that the Notice was served on DLS on 10 December 2018. On 14 December 2018, DLS informed the Director that they ceased acting for the Applicant and returned the Notice to the Director.

40.  The Director informed the Board further that the Notice was served upon the Applicant by post at his last known address on 15 March 2019 pursuant to a subsequent request received from the Applicant. The Applicant’s case was that he received the DOI Decision on 23 March 2018.

41.  DLS informed the Board that after they had received the Notice, they had not been able to reach the Applicant during the period from 11 to 14 December 2019 despite making 12 telephone calls to the Applicant and sending a letter to the Applicant’s last known address requesting the Applicant to contact them.

42.  In §11 of the Board’s Decision the Board stated that: “Given the Notice of Decision was dated and was, on first glance, served on the DLS on or about 10 December, 2018, the last day when the [Applicant] shall file the Notice of Appeal within the time limit should be around 27 December, 2018”. It seems that the Board had found that the Notice had been given to the Applicant on 10 December 2018.

43.  However, in §16 of the Board’s Decision, the Board stated that:

“On basis of the information the Board has, the [Applicant] did not actually receive the Notice of Decision until around 15 March, 2019 when the Director sent the same to the Appellant by post at his last known address. On face of it, the [Applicant] was not late in his filing of the Notice of Appeal as he filed the same on 25 March 2019.”

44.  Section 37ZS(1) of the Ordinance does not refer to the “date” or “issuing date” of the DOI Decision but “14 days after notice of the decision [ie the DOI Decision] is given to [the Applicant]”. In §16 of the Board’s Decision, the Board referred to the Notice being sent by the Director to the Applicant on around 15 March 2019. It seems that the Board had made a finding that the Notice was “given” to the Applicant on 15 March 2019. In such case, the NOA was not filed late.

45.  If the Board had not found that the Notice was “given” to the Applicant on about 15 March 2019 for the purpose of section 37ZS(1) of the Ordinance, the Board would not have said that on face of it, the Applicant was not late in his filing of the NOA.

46.  If this was the Board’s finding, the Board’s power under subsection (3) of the Old s37ZT was not engaged. It is reasonably arguable that the Board was erred in law in making a decision to disallow late filing of the NOA when the Applicant, in fact, was not late in filing the NOA.

47.  If my above understanding were wrong and the Board had not made any finding on the date when the Notice was given to the Applicant for the purpose of section 37ZS(1) of the Ordinance, then it is reasonably arguable that the Board would have no legal basis to purportedly exercise the power conferred to it by subsection (3) of the Old s37ZT.

48.  After stating that the Applicant was not late “on face of it”, the Board went on to state in §16 of the Board’s Decision that: “The issue is however whether the circumstances as identified above [ie matters referred to in §§38-41 above] amount to special circumstances which would make unjust a refusal to allow late filing.” After considering various matters, the Board concluded that “I am not satisfied that the [Applicant] has established a special circumstance which would make unjust a refusal to allow late filing of the Notice of Appeal. In any event, the circumstance as identified above does not amount to, I find, such special circumstance.” The Board refused to allow late filing of the NOA.

49.  The matters considered by the Board included:

(1)  personnel of DLS would have left messages through voice mail when they made the 12 unsuccessful calls to the Applicant informing the Applicant that the DOI Decision had been made and the Applicant had to approach them immediately for purpose of getting the DOI Decision in due course (§17 of the Board’s Decision); and

(2)  it was reasonable to infer that the Applicant had, by reason of the letter to him from DLS, been put on notice of the issuance of the DOI Decision bearing in mind that the Applicant was last interviewed in December 2018.

50.  The Board assumed that DLS had left voice messages to the Applicant and made further assumption on the content of such messages. The Board further assumed that the Applicant had received the December 2018 letter from DLS. These assumptions were not supported by any evidence.

51.  The response from DLS as set out in §15 of the Board’s Decision did not say that DLS had left messages to the Applicant, not to say the content of such messages.

52.  Furthermore, according to §15 of the Board’s Decision, DLS, in their letter, only asked the Applicant to contact them immediately. There was no mention that DLS had in the letter informed the Applicant that the DOI Decision had been issued. The aforesaid inference made by the Board was not supported by content of §15 of the Board’s Decision.

53.  If the Board made a finding of fact without evidential or factual basis, it is arguable that when making such finding, the Board had erred in law and the finding was Wednesbury unreasonable.

54.  In §19 of the Board’s Decision, the Board remarked that:

“On the other hand, there is no reference by the Appellant about the calls by DLS personnel nor the letter from the DLS. There is equally no information that the [Applicant] did not receive the letter from DLS. It is noted that the last known address provided by the [Applicant] is still effective as the [Applicant] admittedly received the Notice of Decision from the Director around 15 March, 2019.”

55.  The Board had made adverse inference on the Applicant not mentioning the unanswered calls and the letter concerned from DLS in the NOA without evidence showing that the Applicant were aware of those calls (which were unanswered) or that he had received the letter from DLS.

56.  Furthermore, when the Applicant filed the NOA on 25 March 2019, the Applicant did not know that the Board would make enquiries with DLS or what information would be provided by DLS to the Board. It was unfair to require the Applicant to speculate on such matters when he was preparing the NOA. After the Board receiving reply from DLS, the Applicant had not been given an opportunity to answer the information provided by DLS to the Broad. It is reasonably arguable that it is procedurally unfair to the Applicant for the Board to make such adverse inference against him relying on matters which he had no opportunity to answer.

57.  The Board also referred to the Applicant completing section 5 of the NOA and concluded that: “This necessarily indicated that the [Applicant] was under the impression that he was late.” (§20 of the Board’s Decision) Whether the NOA was late is a mixed issue of fact and law, depending on the interpretation of the word “given” used in section 37ZS(1) of the Ordinance. The impression of the Applicant was irrelevant. If the Board took into consideration irrelevant matters in making a finding of fact, the finding is arguably irrational or Wednesbury unreasonable.

58.  After considering the reason for late filing of the NOA (assuming for the time being that the NOA was filed out of time), the Board refused to allow late filing of the NOA as the Board was not satisfied that the Applicant had established a special circumstance rendering the refusal unjust. The Board did not look into the merits of the Applicant’s case.

59.  The 3-stage approach alluded to in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 (3 March 2016) in dealing with late filing of notice of appeal in non-refoulement claim was affirmed by the Court of Appeal as applicable in Hong Kong in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430.

60.  In Re Khan Kamal Ahmed the Court of Appeal pointed out that as the last of the 3-stage enquiry alluded to in the Begum case, where there was a serious or significant breach for which no good reason was given, the decision maker moved to evaluate all the circumstances of the case with a view to dealing justly with the application. 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. (emphasis added) (§§18 and 20 of the judgment)

61.  In Re Qasim Ali the Court of Appeal stated that: “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.” (§25 of the judgment)

62.  The following remarks of the Court of Appeal made in Re Khan Kamal Ahmed (supra) equally apply to this case:

“19. In this case, the Board stopped after the 2^nd stage, noting that the applicant had not provided any reason for the delay. It had not taken account of any other facts or circumstances of the case.

20. We agree with the Judge that 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.”

63.  It is reasonably arguable that the Board had erred in law in refusing leave for the Applicant to file the NOA out of time in this case without considering the merits of the Claim.

Conclusion

64.  For reasons stated above, I am 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 the Po Fun Chan case (supra).

65.  I note that above is not exactly how the Applicant argued this application in the Form 86 and the Supporting Affidavit. However, I bear in mind the high standards of fairness required from this court and the obligation of this court in conducting rigorous examination and anxious scrutiny on the Board’s Decision on top of argument put forward by the Applicant for his application in dealing with claims for non-refoulement protection.

66.  I would grant leave to the Applicant to apply for judicial review. In accordance with Order 53 rule 5 of the Rules of the High Court, the Applicant should file and serve an originating summons within 14 days from the date of this judgment.

67.  The originating summons should set out the grounds that:

(1)  the Board had erred in law in holding that the NOA was filed late;

(2)  there was procedural unfairness in the Board’s finding of no special circumstances rendering refusal of late filing unjust and such finding was Wednesbury unreasonable; and

(3)  the Board had failed to consider the substance of the non-refoulement claim which was a relevant matter of fact within the Board’s knowledge within the meaning of the then section 37ZT(2)(b) of the Ordinance at the relevant time, ie 25 March 2019.

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