LOURENCO DA SILVA v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 569/2018

[2019] HKCFI 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 569 of 2018

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;

1.   an extension of time for the application for leave to apply for Judicial Review against the decision of Torture Claims Appeal Board made on 29 December 2017 granted; and

2.   leave to apply for Judicial Review refused.

Observations for the Applicant:

1.  The applicant is a 40-year-old national of Guinea-Bissau, West Africa with right of residency in Nigeria who last arrived in Hong Kong on 25 October 2010 with permission to remain as a visitor up to 8 November 2010 when he did not depart and instead overstayed and was arrested by police on 6 September 2011.  After he was referred to the Immigration Department for investigation, he lodged a torture claim which was later taken as a non-refoulement claim on the basis that if he returned to Guinea-Bissau or Nigeria he would be harmed or killed by his father’s relatives in the former over a previous land dispute, or by the family of a deceased friend in the latter who suspected that he was responsible for his friend’s death.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born in Guinea-Bissau but was moved by his parents to Nigeria when he was small after his father was banished from his home town by his relatives over certain land dispute with a warning that he or any member of his family would be killed if they dared to return to Guinea-Bissau, and so the applicant was raised in Nigeria and attended school there.

3.  After leaving school he started his own business in Nigeria selling goods which he imported from China with the help of his childhood friend Oduche who was a Nigerian custom-clearing agent, but after a dispute with him over some money in 2010, Oduche disappeared and the applicant had since been unable to contact him.

4.  Several months later whilst the applicant was in Onitsha, he was kidnaped by some unknown men, but after they found that he had no money, he was released two days later with a warning that if they saw him again they would kill him, and the applicant suspected that it was a death threat sent from Oduche due to their previous dispute.

5.  Upon returning to Nigeria the applicant approached Oduche’s wife and asked her about Oduche, but when she failed to disclose his whereabouts, the applicant feared that Oduche would continue to pose threats against him, and therefore left Nigeria for Hong Kong in October 2010, but when he heard that Oduche had died in an accident and his family suspected that the applicant had something to do with his death due to their previous dispute and therefore swore to take revenge against him upon his return to Nigeria, the applicant decided to overstay in Hong Kong and raised his torture claim after his arrest by the police, for which he later completed a Non-refoulement Claim Form on 16 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 6 December 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

7.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his father’s relatives or from Oduche’s family upon his return to Guinea-Bissau or Nigeria as low due to the absence of past ill-treatment from them, that there was no evidence of any threats from any relatives of his father in Guinea-Bissau and that even if there were any such threats in the past that it is unlikely that they still exist after all these years, that the death of Oduche was based on hearsay without any reliable evidence while his fear of revenge from Oduche’s family was mere speculation that in the absence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in either Guinea-Bissau or Nigeria where both have large populations spread across vast territories that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of either country away from his home district where it would be difficult if not impossible for his perceived enemies to locate him.

8.  On 13 February 2017 the applicant filed a notice of appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but section 37ZS of Part VIIC of the Immigration Ordinance, Cap 115 stipulates that a person who wishes to appeal against the Director’s decision must file with the Board a notice of appeal within 14 days after notice of the decision is given to the person unless late filing is allowed by the Board.

9.  As the Director’s decision dated 6 December 2016 was sent by post to the applicant’s last known address, adding two days for service would take the last filing date of the applicant’s Notice of Appeal to 22 December 2016, and hence when his Notice of Appeal dated 7 February 2017 but was filed on 13 February 2017 as shown by the date stamped on it, the applicant was late by more than seven weeks, for which section 37ZT provides that the Notice must include an application for late filing with a statement of reasons for failing to file on time, and be accompanied by documentary evidence in support, and that the Board must decide as a preliminary decision without a hearing whether to allow the late filing, and in doing so it may only take account of:

(a)  the statement of reasons stated in the application for late filing and any accompanying documentary evidence in support; and

(b)  any other relevant matters of fact within the knowledge of the Board.

10.  In his Notice of Appeal the applicant did include a statement of the reasons for his late filing essentially for health reasons.  He also attached some documents in support of his assertion.  On 29 December 2017 his late filing of his Notice was disallowed by the Board.

11.  In its decision the Board first set out what the applicant had stated in his statement of the reasons for his late filing and the principles it was to be guided in its consideration of the application as follows:

“ 9.  The Appellant adduced a photograph showing a man (the Appellant?) lying on what appears to be a hospital bed. The photograph is not dated. The Appellant had also adduced some outpatient appointment slips dated March and April 2017, for what appears to be diabetes. The Board has taken into consideration the contents of all the documents sent in by the Appellant, that is, everything that was stated by the Appellant to find and consider all the reasons why the application was late.

10.  As explained above, the Board’s decision whether to allow the application for late filing of the Notice of Appeal is circumscribed by section 37ZT of the Ordinance. The Board must decide the application on the basis of a preliminary decision without a hearing. This means that the Board cannot ask the Appellant to appear before it in order to clarify matters, because such an appearance would be regarded as a hearing. The Board must make its decision based entirely on the information available to it.

11.  In considering this application, the Board was guided by the legal principles stated in the latest authority handed down by the United Kingdom Court of Appeal, The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122.

…

13.  The principles that litigation must be conducted efficiently and at proportionate cost, and that compliance with rules and practice directions must be enforced are legal principles with universal application. These principles are as important here in Hong Kong as they are in the United Kingdom.

14.  The Appellant’s reasons for being late reads as follows: ‘I don’t know if I am late in replying to this decision as I received this information on the 26^th January 2017. If I am already please forgive me as its due to my poor health conditions. To err is human and to forgive is divine.’

15.  All the matters given in section 5 of the Notice of Appeal by the Appellant have been taken into consideration, as well as other relevant matters of fact within the knowledge of the Board.”

12.  The Board then proceeded to give its reasons for not allowing the applicant’s late filing of his Notice as follows:

“ 18.  The Appellant’s explanation for late filing of his application is because of his ill-health. The Board notes that the Appellant lodged a non‑refoulement claim on 8 September 2011 and commencement of consideration of his claim under the Unified Screening Mechanism began on 3 March 2014. The Board notes from para. 4 et seq. of the Notice of Decision that the Appellant was asked to provide additional information to support his at various points, including through the Duty Lawyer Service but the Appellant did not provide further information and it appears allowed his instructions to the Duty Lawyer to lapse.

19.  There is no explanation of why the appellant has failed to provide further information to support his case or what his health conditions are exactly—the Board is left to try and deduce from the appointment receipts —or why they prevent him from pursuing his case. There is no explanation of why the Notice of Appeal took nearly two months to reach the Board.

20.  The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in SSHD v Begum. These principles are that there is a need to enforce compliance with rules as set out in the Ordinance; and the need for this type of application to be conducted efficiently and at proportionate cost.

21.  The Board finds that the delay in lodging the appeal is extraordinary and unexplained. The Board is not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.

22.  The late filing of the Notice of Appeal is disallowed pursuant to section 37ZT(4) of the Ordinance.”     

13.  On 6 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no grounds for seeking relief was given in his Form or in his supporting affirmation of the same date, and at the hearing of his application now before me, he merely repeated his claim that his life is still in danger in either Guinea-Bissau or Nigeria, and asked that the court reconsider his non-refoulement claim.

14.  As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision.  As such it is therefore not open to the applicant to challenge the Director’s decision by way of judicial review. 

15.  As for challenging the Board’s decision, the applicant was then again late with his Form 86, 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.

16.  As the Board’s decision was made on 29 December 2017, the last date for the applicant to make his application fell on 29 March 2018 under the said rule, and hence when he filed his Form 86 on 6 April 2018, he was out of time by eight days, for which he explained in a Letter of Clarification attached to his supporting affirmation that the delay was caused by the loss of some of his documents relating to his claim when the windows of his home were blown out by a typhoon in August 2017, and so when he decided to apply for judicial review of the Board’s decision he had to obtain copies of those lost documents from his former lawyer in DLS which caused the delay.

17.  Given the delay of eight days may not in the circumstances be said to be significant or excessive, I am prepared to accept the applicant’s explanation and extended time for his late application, but still it would not assist his case in the absence of any valid grounds for his intended challenge of the Board’s decision, and it is certainly not for the court to reconsider his non-refoulement claim by way of judicial review as he so requested in his application.

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

19.  In the applicant’s case, the Board had properly and carefully considered and evaluated the reasons for his late filing of his Notice of Appeal based on the evidence available to it and the applicable legal principles and provisions.  As correctly pointed out by the Board, given the fact that it was required to determine the application as a preliminary decision without a hearing, it was incumbent on the applicant to provide clear and sufficient evidence including documentary to satisfy the Board that there were special circumstances to justify allowing his late filing, and for the reasons noted above the Board was right to find those documentary evidence produced by the applicant as far from clear or sufficient to support his alleged health reasons to be accepted as special circumstances for allowing his late filing, and I note, and no doubt also by the Board, that the dates of those outpatient appointment slips were much later than the relevant period when the applicant was required to file his Notice of Appeal.  For these reasons I am unable to see any reasonably arguable ground for the applicant’s intended challenge of the Board’s decision.

20.  In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the applicant’s application for late filing of his Notice of Appeal.

21.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave 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