MBUNGA MOKONGA PIERROT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 353/2019

[2024] HKCFI 2205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 353 of 2019

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 8 February 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 18 January 2019 and 8 February 2019 (the “2019 Decision””).

2.  The available facts indicate that the Applicant is a national of the Democratic Republic of Congo (the “DRC”). He entered Hong Kong as a visitor on 4 December 2007. He overstayed and surrendered to the Immigration Department on 18 February 2008. Then he made a torture claim on 29 April 2008. He was released on recognizance on 30 May 2008.

3.  He was arrested by the police for two counts of dealing with property known or believed to represent proceeds of an indictable offence and two counts of using a false instrument on 8 November 2010. He was convicted and sentenced to 52 months’ imprisonment on 27 July 2011. He was discharged from prison and transferred to the Castle Peak Bay Immigration Centre on 30 September 2013 pending removal. He was subsequently released on recognizance on 5 November 2013.

4.  In due course, his non-refoulement claim was assessed on all three applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2] and Persecution Risk[3] ground. His claim was refused by the Director’s Notice of Decision dated 14 November 2014 (the “Notice”). His appeal against that Notice was dismissed by the Board’s Decision dated 2 December 2016 (the “2016 Decision”).

5.  On 10 March 2017, the Applicant was invited by the Immigration Department to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all applicable grounds including that under BOR 2 Risk ground within 14 days of the invitation. He did not respond. On 31 March 2017, the Director issued a Notice of Further Notice (the “Further Notice”) and dismissed his claim under BOR 2 Risk ground. On 26 April 2017, the Applicant filed a Notice of Appeal (“NOA”) to appeal the Further Notice. The Board found the NOA was filed out of time and issued a decision refusing the late filing on 18 January 2019 (the “2019 Decision”).

6.  On 8 February 2019, the Applicant made the present leave application in respect of the 2019 decision and a decision of the dated 8 January 2019. He never made any leave application in respect of the 2016 Decision. No decision had been made by the Director or the Board relating to the Applicant dated 8 February 2019. That date is actually the date when he filed the present leave application. It has no nexus with any decision of the Board relating to the Applicant, specifically, not the 2016 Decision. That date must be a mistake.

7.  Against this background, it is obviously the Applicant’s intention to seek judicial review of the Board’s 2019 Decision as well as its 2016 Decision which he mistakenly or even carelessly wrote down as a decision made on 8 February 2019 in the Form 86. The Applicant is an unrepresented non-refoulement claimant seeking protection on foreign soil. In this regard, the high standard of fairness requires this Court to assist him in advancing his intention in his non-refoulement claim so that he would not be disadvantaged through lack of legal knowledge or legal representation. Thus, the issues raised by this leave application is not just whether to grant leave in respect of the decisions as stated in the Form 86, but also whether to grant leave to amend his leave application so that the decisions (including the 2016 Decision) which he truly intends to seek leave to review could be made the subject matter of his leave application.

Leave to amend to enable the 2016 Decision to be reviewed

8.  On the factual circumstances of this case, to obtain leave to amend the date of the decision to be reviewed involves not just amending a typographical error, but also extension of time to make the leave application as amended. The 2016 Decision was made on 2 December 2016. Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. An application made after three months is deemed to have been made with undue delay. Even if the amendment were made on 8 February 2019 when the Form 86 was filed it would have been more than 35 months out of time.

9.  In considering whether to grant extension of time in making a leave application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[4]. Merits are usually a very important factor. But, it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[5] that where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”.

10.  The Court can understand that the Applicant is a layman. But, ignorance of the law and carelessness are not reasonable excuses. The delay in this case of almost three years is so substantial and inordinate that it is beyond the limit which any court could indulge. The Court cannot allow an amendment with the inevitable consequence that the application as amended is doomed to fail.

The facts and issue raised in respect of a review of the 2019 Decision

11.  On the facts, the Director issued the Further Notice refusing the Applicant’s application for non-refoulement protection dated 31 March 2017 and the Applicant filed a Notice of Appeal (“NOA”) to appeal that Further Notice on 26 April 2017. The Board found pursuant to section 37ZS(1) of the Immigration Ordinance (the “Ordinance”) and Paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (the “Petition Guide”), his appeal was made eight days out of time. The explanation the Applicant gave in Section 5 of the NOA for the delay is that he received the Further Notice “just yesterday” ie on 25 April 2017. He did not produce any documentary evidence in support of that reason as required by Section 5. The Board found there was no valid ground for the late filing and no extenuating circumstances to show that it would be unjust and inequitable to refuse his late filing. Hence, it refused his late filing and dismissed his appeal the 2019 Decision. The issue raised by the leave application in respect of the 2019 Decision is the propriety of the Board’s refusal of the late filing of the NOA against the Director’s Further Notice.

The law

12.  Under the non-refoulement protection regime, a claimant aggrieved by the decision of the Director may appeal that decision by filing a NOA with the Board within 14 days after the notice the decision has been given to him: Section 37ZS(1) of the Immigration Ordinance (the “Ordinance”) and Paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (the “Petition Guide”). Failing that, he may make a late filing, pursuant to Section 37ZT(1) of the Ordinance, by giving a statement of the reasons for his failure accompanied by all available supporting evidence. For that purpose, Section 5 of the NOA form is designed as an application for late filing for the claimant to state the reasons for his failure when filing the NOA.

13.  Section 37 ZT(2) of the Ordinance and Paragraph 9.2 of the Petition Guide mandate the Board to decide, as a preliminary decision without a hearing, whether to allow the late filing. The subsection also requires the Board to only take account of the statement of reasons stated in Section 5 of the NOA and the supporting evidence relied on. Under Section 37ZT(3) of the Ordinance and Paragraph 9.3 of the Petition Guide, the Board may allow the late filing if the claimant has provided sufficient evidence in writing to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control.

The finding of the Board

14.  The Further Notice is dated 31 March 2017. On that basis, the Board found, allowing for delivery by post, that the 14-day period to file the NOA expired on 18 April 2017 and hence the Applicant was eight days late. The Applicant claimed he received the Further Notice on 25 April 2017 but did not produce any supporting documentary evidence as required by Section 5 of the NOA.

15.  The Board noted that Paragraph 7 of the Further Notice contain a reminder or a warning that the Applicant must lodge his appeal if aggrieved by the Further Notice. It also noted the same reminder and directions in the instructions in the NOA which state that “you must lodge your appeal/petition within 14 days after notice of the decision is given to you by an immigration officer. If this Notice is filed after the expiry of the 14-day period, you must apply for late filing and include a statement of the reasons in Section 5 of this Notice, which must be accompanied and supported by documentary evidence.” The Board was therefore satisfied that the Applicant knew about the 14-day period and the requirement to give a statement of the reasons for failing to comply together with supporting documentary evidence. By completing Section 5 of the Notice and advancing the explanation, the Applicant also acknowledged that he was late. But other than asserting that he received the Notice “yesterday”, ie on 25 April 2017, he gave no supporting documentary evidence. The Board reasonably expected that if the explanation was genuine, the Applicant would have upon reading the instructions readily retained the envelope containing the Further Notice and presented it to the Board when filing the NOA. Hence, it rejected his explanation as a bare statement and found he had no valid ground for the late filing and no extenuating circumstances to show it would be unjust and inequitable to refuse his application for late filing.

Legal principles applicable to judicial review

16.  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 feasibility of internal relocation and in this case, circumstances relating to late filing of NOA. 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[6].

Grounds for judicial review

17.  The Applicant did not put forward any grounds of leave application in his Form 86. In his supporting affidavit he pleaded that his mother is living in Hong Kong and he had two infant children with him in Hong Kong. He reiterated that he had appealed within the 14-day period and his disagreement with the Immigration Department’s (referring actually to the Board’s) finding that he did not. In effect, he is challenging the Board’s finding of fact and of the law.

Discussion and conclusion

18.  The issue raised by this leave application is the propriety of the Board’s Decision refusing the Applicant’s late filing of the NOA, not the merits of his non-refoulement claim. At the hearing of his leave application, he gave further particulars of his explanation. He said he received the Further Notice six days after the date of the stamp of posting on the envelope containing the Further Notice and filed the NOA two days afterwards. He said he had kept the envelope for two to three months but threw it away when cleaning his home. His further particulars added nothing but inconsistencies to his statement and destroyed its credibility. In any event, this is of no consequence as this Court has no power to make finding of fact in place of the Board.

19.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the 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 raised by the late filing and observed a very high standard of fairness. The Board made its decision in accordance with Section 37ZT. Basically, the Decision is one of finding of fact, which is solely within the province of the Board which the court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality. The Applicant’s statement supported the correctness of the factual basis of the Board’s Decision, ie his NOA was filed out of time. The Applicant knew he had to give an explanation for the delay and to support his explanation with documentary evidence when filing the NOA, but did not comply. At this hearing, he even confirmed he had seen the stamp showing the date of posting on the envelope containing the Further Notice. That impliedly confirmed that the Further Notice was sent on the date of the notice. But on his own evidence, he threw it away. He did so notwithstanding he knew he had to produce documentary evidence to support his claim for late filing. While this Court will not take what he said at this hearing against him, he failed to show any arguable ground that the Board erred in its finding of fact.

20.  There is also no merits in his substantive application, ie his appeal against the Board’s finding on his BOR 2 claim. He advanced no evidence in support of his BOR 2 Risk claim. His claim under Torture Risk, BOR 3 Risk and Persecution Risk ground had been dismissed by the 2016 Decision on 2 December 2016. That decision is final. When the absence of supporting evidence for his BOR 2 Risk claim is viewed against such dismissal, it is impossible to establish a claim under BOR 2 Risk ground. Thus, there could be no extenuating circumstances to show it would be unjust and inequitable to refuse the late filing.

21.  This Court could not detect any error of law in the Decision or procedural unfairness at any stage of the proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

22.  For the above reasons, leave to apply for judicial review is refused.

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