DRAMMEH MAMUDOU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2394/2018

[2020] HKCFI 1099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2394 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 19 January 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which confirmed the Director’s decision of not allowing the applicant to re-open his non-refoulement claim, the details of which will be discussed below.

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing scheduled on 21 January 2020. I shall proceed to consider his 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 was amended by deleting the Director of Immigration (“the Director”) and replacing him with the Board as proposed respondent and by adding the Director as interested party.

The applicant

4.  The applicant is a Gambian national. He came to Hong Kong on 14 May 2006 as a visitor and was allowed to stay until 12 August 2006. He overstayed and was arrested by police on 19 July 2008. He was charged and sentenced to six weeks’ imprisonment. He lodged a torture claim on 13 September 2008

5.  He claimed that if refouled, he would be harmed or even killed by Alfsin’s elder brother as he had a dispute with him regarding a fighting incident. Besides, he also feared that he would be treated as an enemy by the members of the Gambian People’s Party (the “GPP”) since his father had a land dispute with them when he was 12 years old.

6.  Stated briefly, his father had land dealings with GPP. They wanted some properties to be transferred to them from his father at a very low price. His father refused. They came to his house and vandalized it from time to time as his father was not at home. They also threatened to kill him if his father refused to accede to their request. But that was when he was 12 years old.

7.  As to Alfsin’s elder brother dispute, it arose out of an incident in the market. He saw Alfsin’s elder brother trying to bullying another man. He intervened. They fought together and were separated by the passers-by. Alfin’s elder brother was a high ranking officer in the army. He took a number of soldiers to his home. However, he was fore‑warned by Alfsin and was able to escape. He lived in another village named Salakunda where he stayed for nine months without disturbance. However, he took his friend’s advice and left Gambia for Hong Kong in 2006.

The Director’s Decision

8.  The applicant applied for torture claim protection under Part VIIC of the Immigration Ordinance, Cap.115 (the “Ordinance”).

9.  His application was processed on 3 September 2012. He was required to submit the Torture Claim Form (TCF) within 28 days. His duty lawyer returned the TCF to the Director on 8 October 2012 and confirmed that he would not rely on the previous screening records or any part thereof to substantiate his claim.

10.  The Director arranged with his duty lawyer for a substantive interview. The applicant, through his duty lawyer, had postponed the appointment four times, respectively on 19 October 2012, 5 November 2012, 7 November 2012, 15 November 2012. Ultimately, his duty lawyer, by letter dated 13 November 2012, informed the Director that he was unable to act for him because he was unable to find the applicant. The applicant failed to appear on the appointed time on 22 November 2012. The Director finally determined to proceed with the assessment of his torture claim on the basis of available information.

11.  By Notice of Decision dated 10 January 2013 (“the Director’s Decision”), the Director rejected his claim because the alleged threat and attacks did not amount to “torture” as defined under section 37U(1) of the Ordinance and therefore the Director did not accept that he would be subjected to any real risk of torture if he returned to Gambia.

12.  The applicant made his non-refoulement claim on 1 February 2013 and 19 February 2013 respectively. By letter dated 3 November 2016, the Director required the applicant to return the completed Supplementary Claim Form (SCF) on or before 1 December 2016.

13.  By letter dated 14 December 2016, pursuant to section 37ZG (2) of the Ordinance, the Director gave notice to the applicant that his application for non-refoulement was deemed to have been withdrawn and that he might apply to re-open the claim if he provides sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond his control, he had not been able to return a completed SCF as required.

14.  By written request dated 27 May 2017, the applicant applied to re-open his non-refoulement claim, which had been treated as withdrawn. By letter dated 19 June 2017, the Director requested the applicant to provide sufficient evidence in writing to satisfy an immigration officer that he had not been able to return the completed SCF beyond his control. The applicant did not provide the reasons as requested.

15.  By letter dated 5 July 2017, the Director refused to re-open his non-refoulement application. In the same letter, the Director had also advised him that he might appeal his decision to the Torture Claims Appeal Board within 14 days from the date of the letter, the deadline being on 19 July 2017.

16.  The applicant appealed to the Board.

The Board’s Decision

17.  The applicant’s Notice of Appeal was received by the Board on 30 August 2017, which is late for more than one month.

18.  The Board, in accordance with section 37ZT of the Ordinance required the applicant to provide a statement of the reasons for failing to file the notice within time, coupled with any documentary evidence in support of the reasons.

19.  In section 5 of the Notice of Appeal, the applicant put down the reason:

“I have ear problem before and glad now I can hear.”

20.  The Board considered that the Director had stated the reasons why he refused the applicant’s application for re-opening of his case and that he had the right of appeal to the Board within 14 days of the notice; that the applicant had put down in the Notice of Appeal that English is his spoken language; that the applicant had not raised his bearing problem before; that the applicant had not produced any documentary evidence or medical certificate showing that he had any hearing problem and finally that he could have completed the SCF even if he had hearing problem.

21.  For the reasons above, the Board held that the applicant had not shown any special circumstances to justify his late filing of the Notice of Appeal and that it did not consider that it would unjust not to allow the late filing of the Notice of Appeal. It therefore refused to extend time for filing the applicant’s Notice of Appeal. In practical terms, the Board refused his appeal against the Director’s decision of not re-opening his non-refoulement application.

Application for leave to apply for judicial review

22.  The applicant filed Form 86 on 29 October 2018 for leave to apply for judicial review of the Board’s Decision.

23.  In his affidavit in support of his application, he said that he was not satisfied with the decision of the Torture Claim Appeal Board to dismiss his appeal/petition without writing him or sending him a letter.

DISCUSSION

The relevant legal principles

24.  The law imposes duties on the applicant to substantiate a torture claim. Section 37ZA of the Ordinance provides:

“(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—

(a) provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;

(b) comply with every requirement, procedure and condition (including any time limit)—

(i) prescribed by this Part; or

(ii) required or specified by any person under this Part.”

25.  To this end, the applicant must comply with the requirements provided under the Ordinance. Section 37Y provides:

“(1) A claimant must, on written request by an immigration officer—

(a) complete a torture claim form, and the completed form must—

(i) state the grounds of the claim and the facts supporting the claim; and

(ii) include such other information as is required by the form; and

(b) return the torture claim form so completed to an immigration officer at an address specified in the form, together with all documents supporting the claim that are readily available to the claimant when the form is returned.

(2) The claimant must return the completed torture claim form in accordance with subsection (1)(b)—

(a) within the period of 28 days after a written request under subsection (1) is given to the claimant; or

(b) within any further period that an immigration officer allows under subsection (3).”

26.  A fortiori, a torture claim form (TCF) includes a supplementary torture claim form (SCF).

27.  Section 37ZG provides that a torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y (2). The applicant may re-open his application if he provides sufficient evidence in writing to satisfy the immigration officer that due to circumstances beyond his control, he had not been able to return the completed the SCF. Section 37ZG (3).

28.  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“17. Where a notice of appeal is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of ‘any other relevant matters of fact within the knowledge of the Board’ apart from the explanation for the delay.

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.”

Application of the legal principles on the facts

29.  The Director requested the applicant to provide sufficient evidence in writing to satisfy an immigration officer that he had not been able to return the completed SCF beyond his control. The applicant did not provide the reasons as requested. By letter dated 5 July 2017, the Director refused to re-open his non-refoulement application

30.  The Director was entitled to make the decision as he had done by his letter dated 5 July 2017 pursuant to section 37ZG (3) of the Ordinance.

31.  When the applicant filed his Notice of Appeal to the Board out of time and he gave his reason for the delay, the Board, having considered his reason and for the reasons that it had given, rejected his explanation.

32.  According to the Court of Appeal’s decision in Re Khan Kamal Ahmed, the Board has to move to evaluate all the circumstances of the case, taking the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor. The question before me is whether the Board has discharged this duty.

33.  The issue before the Board was whether the Director was correct in the exercise of his discretion of not re-opening the applicant’s non-refoulement claim. The circumstances are quite clear that the Director had given the opportunity to the applicant to explain why he was unable to submit the SCF and the applicant had not given his explanation. The Director therefore exercised his power as provided under the law.

34.  The Board had considered the applicant’s explanation and for the reasons it had given, it refused to accept the applicant’s reason. It seems that the Board was entitled to do so, given the fact that the applicant had not supported his reason with any documentary evidence. The applicant has not given any documentary evidence in support of his explanation in this application for judicial review.

35.  In other cases where the Director had rejected the applicants’ non-refoulement claims, the Director had obtained the TCF or the SCF, in which the applicants had set out their facts in support of their claims. The Board is incumbent to consider whether the Director had properly dealt with the facts of the case and applied the appropriate laws on the facts found before making his decision. In this case, the applicant has not even submitted his SCF. There are no other materials for the Board’s consideration.

36.  There is nothing to show that the Board had committed any error in making its decision of not extending time for the applicant to file his Notice of Appeal.

37.  In the circumstances, I find that the applicant has not any reasonable prospect of success in his intended application for judicial review of the Board’s Decision.

CONCLUSION

38.  Accordingly, I dismiss the applicant’s application for leave to apply for judicial review of the Board’s Decision.

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