JASSEY FRANCIS JA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1404/2020

[2024] HKCFI 353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1404 of 2020

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 Applicant being present in open court;

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 3 October 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). His application filed on 6 July 2020 is late.  The deadline for the application is 3 January 2020. The delay is serious. I shall deal with this issue below.

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, the applicant appeared before the Court on 22 March 2023.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Gambia.  He entered Hong Kong as a visitor on 17 August 2014.  He was permitted to stay until 15 November 2014. However, he did not depart and had overstayed.  On 17 November 2014, he surrendered to the Immigration Department.  On 2 January 2015, he lodged a non-refoulement claim on the basis of a fear of risk of harm arising from a land dispute with his uncle John Jassey.

5.  In brevity, the applicant inherited the family land from his late father.  However, as the younger brother of his late father, his uncle John was dissatisfied with the land distribution.  In March 2014, John started to demand the transfer of the subject land.  The applicant believed that it was a conspiracy to obtain the title of the land illegally and thus he refused to comply with the demand.  Since then, John had been making death threats to the applicant and his mother through telephones.  Out of fear, he fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 4 December 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk.  In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to him [14]; and (iii) internal relocation was a viable option [14]. 

8.  On 13 December 2016, for reasons set out in the Notice of Further Decision, the Director found that the applicant’s right to life was not violated and thus dismissed his ground on BOR 2 risk (the “Director’s Second Decision”).

9.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to as the “Director’s Decisions”.

The Board’s Decision

10.  The applicant appealed the Director’s Decisions to the Board.  On 5 June 2019, the Board conducted an oral hearing for his appeal, during which he testified [3].  Having considered the evidence, the Board concluded that the applicant’s claim was not substantiated.

11.  The Board found that the applicant’s evidence was vague and the land dispute was between his mother and uncle John.  The applicant’s mother remained in their home village and he was not aware of the updated status of the dispute [14].  It also noted that the applicant failed to seek redress for the land dispute through the available and established mechanisms [15].  Meanwhile, it was a private land dispute without state involvement [20] and he failed to show that state protection would not be available to him [21].  As a result, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 6 July 2020 for leave to apply for judicial review of the Board’s Decision.

13.  In his affidavit in support of this application, he said that his life would be in danger if he returns to his country as there was physical attack on his family and his brother lost his life. He did not have physical evidence to show to the Board.

DISCUSSION

14.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 3 January 2020. The delay is about 6 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he was unable to obtain the evidence as he was in custody.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.”

18.  The Board had given its reasons for the Board’s Decision. In particular, the Board found:

“14. The Appellant’s claim is vague and unsubstantiated in the extreme: …

15. …The Appellant’s failure to seek redress makes his claim that the national authorities cannot protect him a mere speculation, if not fanciful. …

18. Taking into account the relevant COI and the Appellant’s profile the Board finds it unlikely that the Appellant is at risk on return to Gambia.”

19.  There is no valid ground from the applicant to challenge the Board’s findings.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.  Therefore, I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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