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HCAL 106/2022
[2022] HKCFI 1541
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 106 of 2022
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Mohammed Tanko |
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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and
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Director of Immigration |
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 K.W. Lung:
1. Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 3 January 2020 be refused; and
2. The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 3 January 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Second Decision”), by which the Board refused to extend time for him to appeal against the Director’s Decision on BOR2 risk of his claim. The applicant’s application filed on 31 January 2022, the deadline being 3 April 2021, is late. I shall deal with this issue below.
2. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.
The applicant
3. The applicant is a Ghanaian. He entered Hong Kong on 9 July 2005 as a visitor and was permitted to stay until 23 July 2005. He overstayed and was arrested by police on 8 February 2009, having remaining in Hong Kong illegally for about three and a half years. He lodged non-refoulement claim by written representation dated 11 February 2009. He claimed that, if refouled, he would be harmed or killed by a group of unknown people, Prince and/or the Prince’s family. Those unknown people had killed his parents.
4. According to the applicant, he witnessed his parents being shot dead by three men. He left his residence and moved to Ghana together with his sister. In Ghana, he witnessed Prince rape his sister. He hit Prince on the head. Prince fell on the ground and bled. Later, he was kidnapped by three persons. He was assisted by one of the kidnappers and escaped. With the assistance of his friends, he came to Hong Kong in order to avoid his enemies. He heard that his sister had been shot dead in Ghana.
The Director’s Decisions
5. His refoulement claim was considered by the Director of Immigration in relation to the following risks:
(1) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(2) 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
(3) 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”).
6. By way of the Director’s Decision dated 22 August 2014 (“the Director’s First Decision”), the Director dismissed the applicant’s claim. The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low; that state protection was available to him and that internal relocation was an option open to him.
7. He appealed the Director’s First Decision to the Board and appeared before the adjudicator. The adjudicator, having considered his evidence, found that there were many inconsistences and discrepancies, which could not be reconciled. The Board, by its Decision dated 26 June 2015 (the “Board’s First Decision”), rejected his evidence and dismissed his appeal. The Board also affirmed the Director’s First Decision.
8. The applicant applied to the Court of the First Instance of the High Court for leave to apply for judicial review of the Board’s First Decision. By the Order of the Court dated 18 November 2015, the Court refused to grant leave to the applicant for the reason that the claim was not reasonably arguable and without realistic prospect of success.
9. The applicant did not take the matter further and therefore the Court’s Order is final.
10. The Director by letter dated 20 December 2016 invited the applicant to supply further information or material for his claim in respect of Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR2 risk”). The applicant did not supply further information or material as requested. The Director proceeded to assess his claim on BOR2 risk. By Notice of Further Decision dated 9 January 2017 (the “Board’s Second Decision”), the Director rejected his claim on BOR2 risk for the reason that there was no evidence to show that his right to life under BOR2 would be violated upon his return.
11. The applicant appealed the Director’s Second Decision to the Board. However, his notice of appeal was out of time. The delay is 3 months and 23 days. The applicant gave the explanation that he did not receive the Director’s Second Decision because there was a mix-up in his mail box. The Board, by its Second Decision, rejected his explanation and refused to extend time for him to file his notice of appeal. In effect, his appeal against the Director’s Second Decision was dismissed by the Board.
Application for leave to apply for judicial review
12. The applicant filed Form 86 dated 31 January 2022 for leave to apply for judicial review of the Board’s Second Decision.
13. In his affirmation in support of his application, he attached a statement, in which he said that his government is still committing genocide atrocities in his country and it will be dangerous for him to return at the moment because he is against the government and he supports the people of the country.
DISCUSSION
14. As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.
15. The Court will bear in mind that the Board’s Second Decision should be examined with rigorous examination and anxious scrutiny.
16. The Board’s Second Decision in issue is the Board’s determination of refusing to grant extension of time to the applicant for him to file his Notice of Appeal. The Board took a narrow view of strict construction of section 37ZT of the Ordinance, focusing on the explanation for the delay and whether there were circumstances whereby it would be unjust not to allow the late filing of the notice of appeal. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 has extended the scope for the Board’s consideration to include the merits of the applicant’s case. Although the Board did not consider the merit of the case in the determination of extension of time, in fact, the merits had been considered by the same Board in its First Decision. The applicant had given no further information or material for his claim on BOR2 risk. The facts remain the same facts as set out in the Board’s First Decision. I therefore consider that the merits of the applicant’s case had been considered by the Board on this occasion, though at different time. The finding of the facts in the Board’s First Decision is final. See paragraph 9 above.
17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.
CONCLUSION
18. I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review. Accordingly, I dismiss his application.
Dated the 24th day of May 2022
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(Chung Lai Fan, Christine)
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 24th May 2022
Mohammed Tanko
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 24th May 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
BOR 612/17/5/112/G6; USM 189/14/9/16/G3
Director of Immigration
Putative Interested Party’s ref. no.: RBCZ 9001171-16 (Formerly QA T/C 767/09; RBCZ 359/09)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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