MUTUNGI DORCUS AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1215/2020

[2023] HKCFI 2658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1215 OF 2020

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 1st Applicant in open court;

1.  Leave to amend Form 86 to include the 1^st Applicant’s daughter, Mutungi Lisa Diallo as the 2^nd Applicant be granted;

2.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 December 2019 be granted;

3.  Leave for the Applicants to apply for Judicial Review be granted;

4.  The 2^nd Applicant be represented by the Official Solicitor pursuant to Order 80, rule 2 of the RHC;

5.  The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

6.  The Applicants do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 46-year-old national of Uganda who arrived in Hong Kong on 16 December 2008 as a visitor with permission to remain as such up to 30 December 2008 when she did not depart and instead overstayed, and was arrested by police on 14 February 2009 for the offence of wounding for which she was subsequently convicted and sentenced to prison for 6 months. After her discharge from prison and was referred to the Immigration Department for deportation, she raised a torture claim on the basis that if she returned to Uganda she would be harmed or killed by the Ugandan authorities and military over her husband’s political involvement, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.  While released on recognizance, A1 met and formed a relationship with a Guinean man in Hong Kong, and on 13 May 2013 gave birth to their daughter, the 2^nd Applicant (“A2”), and for whom she subsequently also raised a non-refoulement claim on the same basis.

3.  A1 was born and raised in Mpigi Village, Mpigi Town, Mbarara District, Uganda. After leaving school she married her husband in 1991, and raised a family with 2 children in her home district.

4.  Her husband was a senior military officer in the Army in the Mbarara area in charge of logistic matters, and supported the ruling party National Resistance Movement (“NRM”), but years later in 2007 he revealed to A1 of his disappointment with some of the policies of NRM, and intended to leave the Army and to switch his support for the opposition party Forum for Democratic Change (“FDC”).

5.  Shortly thereafter one day in February 2007 her husband went to work but failed to return home without any news or contact with A1.

6.  About one month later her husband suddenly came home covered with injuries all over his body, and disclosed that he had been detained by the military and tortured by some military officers who supported NRM.

7.  For the next 2 months while her husband was recuperating at home, some military officers would come to their home to demand him to sign some documents, and when her husband refused, they threatened to kill him and his family.

8.  Her husband did not reveal what those documents were about so as not to involve A1, and eventually he relented and signed those documents. Thereafter those military officers stopped coming, and eventually her husband was allowed to return to his post in the military.

9.  One day in late 2007 her husband as usual left home for work, but again failed to return without any news or contact, and soon some military officers came looking for him, and demanded A1 to disclose his whereabouts, and when she was unable to do so, they accused her of lying and proceeded to beat her with wooden sticks in front of her children.

10.  Thereafter those military officers kept returning to threaten A1, and accused her husband as a traitor for stealing state secrets and that being his wife that A1 should know where he was hiding, and on one occasion they even threatened to rape her and then kill her in front of her children by pointing their guns at her head, but eventually left when A1 was unable to disclose anything about her husband.

11.  After the last incident A1 became fearful for her life and decided to leave the country by placing her children in the care of her grandmother and then went into hiding, and one day in December 2008 she departed Uganda for Bangkok, and from there she travelled to Hong Kong where she subsequently overstayed, and upon her arrest by the police she raised her torture claim, and after it was rejected by the Immigration Department, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) for her claim, and after giving birth to A2, she also raised the same claim for her and completed a Non-refoulement Claim Form (“NCF”) for her with legal representation from the Duty Lawyer Service (“DLS”), but failed to attend any screening interview before an immigration officer due to alleged medical reason.

12.  By a Notice of Decision dated 4 January 2018 the Director of Immigration (“Director”) rejected the claims of both A1 and A2, who were collectively described as “Your Family” in the decision, on all the applicable grounds (except torture risk for A1) including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

13.  In his decision the Director took into account of all the relevant circumstances of the claims of the Applicants and found no substantial grounds for believing that there will be any real and substantial risk of them being harmed or killed by the Ugandan authorities or military upon their return to Uganda due to the absence of or low intensity and frequency of past ill-treatment from them, that A1’s problem was originated from disputes between the Ugandan military and her husband and that there is no evidence that they had targeted her for harm or any reason for them to do so against A2, that in any event state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Uganda with a large population of 39 million people spread across a vast territory of more than 241,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other areas of the country away from her home district in large cities such as Jinja where it would be difficult if not impossible for anyone to locate them.

14.  On 31 October 2018 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but it was returned to A1 to include an application in Section 5 for late filing of the Notice of Appeal as it was made outside the 14-day period required by 37ZS (1) of the Immigration Ordinance, which A1 subsequently did and refiled it on 8 November 2018, and the Board in pursuance of Section 37ZT (2) of the Ordinance proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Notice of Appeal, and by a decision dated 23 December 2019 it refused the late filing of the Notice of Appeal.

15.  It would be relevant at this stage to note the law then was as set out in Section 37ZT (2) of the Immigration Ordinance for the Board to take account of the following matters in its determination of an application for late filing of the notice of appeal:

“(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.”

16.  In the application A1 gave the following reasons for the late filing of the appeal as set out in Section 5 of the Notice of Appeal:

“I, Mutungi Dorcus of RBCL 33044-09, REF USM 1415/18/10/493/U99, mother of Mutungi Lisa Diallo has made a late appeal against the decision of My Family’s Non-refoulement Torture Claims cause of the following reasons:

(1)  Received my Notice of Decision while in detention at C.I.C. around late Oct. from the officers at C.I.C. and not from DLS. I filled and mailed the completed forms through the Welfare Officer within few days. I was under the impression that I was appealing on time, and not out of time.

(2)  On January 2018, I was kicked out of the ISS Shelter. Pregnant and homeless, I moved in with a friend at Chungking Mansion 15^th Floor, Block A. During this period I had a miscarriage. At one point I was very sick and too much pain. My friend called my ISS social worker officer Miss Anju at the Kwong Tong Office on the following number 2787-7601. My ISS social worker had me admitted to hospital namely Queen Elizabeth Hospital where by I had surgery.

(3)  Upon my discharge from Queen Elizabeth Hospital I lost all my documents. I reported the loss of my documents to the Tsim Sha Tsui Police Station.

(4)  Since the operation I have lost my faculties and I have been having memory loss to the extent that I forgot my own daughter’s birthday.

(5)  My daughter and I are on the same case. Hence the same USM REF 1415/18/10/493/U99. Furthermore, she is a minor and that is why I added her details in Section 1 of the Appeal Form. I want to be with my daughter and therefore do not want to be separated from her. I will appeal on behalf of her as soon as I get her Notice of decision and appeal forms.

(6)  I received the copy of the appeal forms with instructions to fill in Section 5 from the CIC officers on 6^th October 2018. As per your instruction you want to have the completed Section 5 for the late appeal on 7^th November 2018 since I am sending this on the 7^th Nov 2018 through the Welfare Officer, I will not be able to send it earlier than on the deadline which you have given me. Please take into consideration this.”

17.  In its decision the Board found no appeal had been filed by A1 for her daughter A2, that A1’s Notice of Appeal for herself only was late by more than 9 months which was a serious and significant failure to comply with the rules, that the Director’s decision was sent to her lawyer from DLS and hence she should have received it within time, that her explanations of what had subsequently happened to her were not acceptable as she could have sought assistance from DLS, and that there were no other matters known to the Board or revealed by the factual basis of her claim which might amount to special circumstances that might make it unjust not to allow the late filing of A1’s Notice of Appeal.

18.  On 17 June 2020 A1 filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date, nor was she able to do so at the hearing of her application, but she did explain that she had all along intended to include A2 in the application but omitted to do so by mistake, and that she therefore sought leave from the Court to include her daughter in her Form 86, which I did accordingly to allow her daughter to be added as A2 in the application.

19.  The Applicants were however by then already out of time with their application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

20.  As the last day of the 3 month-period for them to file their Form 86 fell on 23 March 2020, the Applicants were therefore almost 3 months late with their application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

21.  In the Applicants’ case, a delay of almost 3 months must be considered as substantial and inordinate, for which A1 explained at the hearing that she was then being detained at CIC and had had difficulties seeking legal assistance for the application that caused the delay.

22.  The record shows that the Board’s decision was sent on the same day to A1 at CIC without being returned through undelivered post, and while there would be the inevitable delays with incoming and outgoing mails as well as inconvenience in seeking legal assistance, I still have difficulty accepting A1’s explanation for her such serious delay.

23.  As for the merits, if any, of the intended application, as noted above that A1 has failed to put forward any proper grounds for their intended challenge. Nevertheless, given the seriousness of the issue at hand and the implication of depriving the Applicants, one of whom is a minor without legal representation, of the second-tier screening process of their non-refoulement claims by the Board under the Unified Screening Mechanism (“USM”) due to a procedural breach, and in which their life and limbs were said to be at stake, the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for refusing the late filing of their Notice of Appeal.

24.  It would be relevant to first note the Board’s findings that notwithstanding the Director’s decision had rejected the non-refoulement claims of both Applicants but that no Notice of Appeal had been filed by A1 on behalf of her daughter A2 despite repeated reminders from the Board for her to do so (see [2] of the Board’s Decision), and proceeded to give the following reasons for refusing A1’s application for late filing of her Notice of Appeal:

“18. … I do not find the Petitioner’s reasons for late filing acceptable to explain why she filed her Notice of Appeal 9 months and 11 days late. It would not be sufficient for her to make a bare statement that she did not receive the Director’s Notice of Decision from the DLS and only received it in CIC in late October 2018, that she had changed address to live with a friend in Chungking Mansion, had a miscarriage, was unwell and had surgery in January 2018, and had lost all her documents and suffered some memory loss after her surgery. She was all along represented by the DLS, the Board is satisfied that she had received the Director’s Notice of Decision when it was served on her care of the DLS, and she could always approach the DLS at any time for legal assistance. In all the circumstances, the Petitioner would have no good reasons for the breach.

19. The Director had carefully considered all the Appellant’s claim and given full reasons in the Notice of Decision. The Appellant had not appealed or petitioned against the Director’s Notice of Decision, after it was served on her via the DLS, and only lodged a late appeal/petition when she was detained at CIC. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the petitioner’s application.

20. There were no other matters known to me or revealed by the factual basis of the Petitioner’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.

21. Accordingly, I refuse the Petitioner’s application for late filing of the Notice of Appeal.”

25.  Firstly, it seems clear to me from both the 1^st Notice of Appeal filed on 31 October 2018 in which no application for late filing was included and was returned to A1 for rectification, and the 2^nd Notice of Appeal subsequently refiled by her on 8 November 2018 which included the application for late filing, that A1 had in fact included her daughter A2 in the appeal against the Director’s decision, as she so stated in Section 1 (J) of both copies of the Notice of Appeal where she provided the name, relationship and date of birth of A2 as a member of her family in the appeal.

26.  Furthermore, had the Adjudicator read either versions of the Notice of Appeal properly, he would have also found that A1 did clearly state in section 2: Grounds of Appeal/Petition that she made her appeal for both herself and her daughter as follows:

“I Mutungi Dorcus mother of Mutungi Lisa Diallo would like to appeal against the Decision of My Family’s Non-refoulement Claims been rejected …”

27.  As noted above in the Director’s decision that the term “Family” was first used by the Director to refer to both A1 and A2 collectively in his consideration of their non-refoulement claims. Henceforth, and for those reasons given above, it should have been clear to the Adjudicator that when A1 lodged the Notice of Appeal in either versions, she did include A2 in the appeal, and it seems to me therefore reasonably arguable that the Board had erred in its finding that no appeal had been filed for A2.

28.  Secondly, while the record shows that the Director’s decision was sent on the same day of 4 January 2018 to the Applicants’ lawyer from DLS, given A1’s assertions of receiving the decision only in October 2018 from officers while in detention in CIC and not from DLS in January 2018, high standards of fairness would in my view require the Adjudicator to at least make enquiry with DLS for their confirmation as to when and where was A1 indeed given the Director’s decision, something which can be easily done and have been seen to be done in other cases of similar situation that had come before this Court but which had not even been considered in this case.

29.  It also seems to me that as the Adjudicator did not disbelieve A1’s account of events that occurred to her in January 2018 and thereafter including change of address, a miscarriage and a surgery as well as losing all her documents, but appeared to have just brushed them aside as bare assertions that she could always approach the DLS for legal assistance when there was no evidence or information before the Board that A1 was then still represented by DLS at that stage, or if so that she was in a position to seek their assistance while in her situations.

30.  Furthermore, while the Board did in its decision direct itself to adopt the approach referred to in The Secretary of State for the Home Department v Begum (2016) ECWA Civ 122 in its determination of the late filing of the Notice of Appeal (see [17] of Board’s Decision), including to evaluate all the circumstances of the case, it seems to me in doing so that it failed to take account of the merits of the Applicants’ appeal, as held to be relevant by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, and Re Qasim Ali [2019] HKCA 430, 8 April 2019, when both decisions had in fact been handed down some 8 months before this Board arrived at its decision, and would have been well within its knowledge of such requirement, of which Lisa Wong J in giving the judgment of the Court in the latter case elaborated:

“23. Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). 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.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16] - [20].

27. For these reasons, we are 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 Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

31.  In the present case, while the Board did state that the Director had carefully considered all the Applicants’ claims and given full reasons in his decision (see [19] of Board’s Decision), that in my view by no means follows that the Board had carried its own consideration, and if it had it never referred to those grounds of appeal set out by A1 in section 2 of the Notice of Appeal, and that with respect, granted that at the time the Court of Appeal had not yet laid down those propositions set out in Fabio Arlyn Timogan [2020] HKCA 971 regarding non-refoulement claim made by or on behalf of a minor. In the case of A2, it seems that the Director had not accordingly fully or properly consider her claim, and it follows that the Board had also erred in finding that the Director had done so in the consideration of A2’s claim.

32.  In the premises, and for the reasons given, I am of the view that the Applicants’ intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that (1) the Board had erred in finding that A2 had not filed any Notice of Appeal against the Director’s decision or that A1 had failed to do so on her behalf; (2) the Board had failed to properly and/or adequately consider and assess the Applicants’ reasons stated in their application for late filing of their Notice of Appeal or that its findings that they would have no good reason for the breach were not Wednesbury reasonable; and (3) the Board failed to consider the merits of the Applicants’ appeal or the substance of their non-refoulement claims as part of the relevant matters of fact within the Board’s knowledge under Section 37ZT (2) of the Immigration Ordinance; and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

33.  Accordingly, I extend time to their late application, and grant leave to the Applicants to apply for judicial review of the Board’s decision on the grounds stated above, and direct that they shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

34.  In pursuant of Order 80 rule 2 of the RHC, I also direct that A2 be represented by the Official Solicitor for her judicial review 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