COUTINHO ERASMO ALEXANDRE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2533/2019

[2025] HKCFI 2462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2533 of 2019

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 oral submissions by the Applicant in open court;

1.  Leave to apply for Judicial Review be granted; and

2.  The Applicant should file and serve an originating summons within 14 days from the date of this judgment.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Coutinho Erasmo Alexandre (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 3 June 2019 (“Board’s Decision”) when the Board refused the Applicant’s application for late filing of a notice of appeal against the decision of the Director of Immigration (“Director”) rendered on 15 January 2019 (but erroneously dated 15 January 2018 [see §10 of the Board’s Decision]) (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Mozambican born on 15 January 1986 in Chokwe. He was raised in Matola, Maputo, Mozambique. He received a bachelor’s degree in a university in Johannesburg and operated his own mobile phone accessories business there.

3.  The Applicant claimed that his father was a member of Resistência Nacional Moçambicana (“RENAMO”). He never applied to be a member of RENAMO but he thought it likely that he would be considered as a de facto member. He was afraid of being harmed or killed by members of the opposing political party, Frente de Libertaçãao de Moçambique (“FRELIMO”).

4.  The Applicant claimed that his father was killed in Mozambique on 25 September 2015 by FRELIMO members. He believed many RENAMO members, including his father, were killed by FRELIMO members due to ongoing political rivalry.

5.  The Applicant was studying in Johannesburg when his father was murdered. Upon hearing the news, he went back to Mozambique in January 2016 and sold his father’s belongings. He then returned to Johannesburg and operated a mobile phone business until December 2017 when he departed for Mainland China to purchase supplies for his business.

6.  The Applicant came to Hong Kong on 10 January 2018 with the intention of taking a flight back to Johannesburg. However, he was informed by his father’s friend (“AR”) that it would not be safe for him to return. Upon the suggestion of AR, the Applicant decided to stay in Hong Kong to seek protection.

7.  The Director assessed the Claim on the following grounds under the unified screening mechanism. (“USM”):

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

8.  By the DOI Decision, the Director refused the Claim. On 18 March 2019, the Applicant filed a Notice of Appeal/Petition for Non-refoulement Claim (“NOA”). The NOA was filed late. By the Board’s Decision, the Board refused the Applicant’s application for late filing of the NOA.

9.  On 30 August 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

Legal principles applicable to judicial review

10.  In a judicial review, the court does not step into the shoes of the decision makers.

11.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. … … 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

12.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

13.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

14.  In the Supporting Affidavit, the Applicant deposed that “[his] life is still in danger…in Mozambique” and exhibited the Board’s Decision.

15.  Under section 37ZS(1) of the Ordinance, a person who wishes to appeal against a decision of the Director rejecting a non-refoulement claim, must file with the Board a notice of appeal within 14 days after notice of decision is given to that person, unless late filing of the notice is allowed by the Board under section 37ZT(3) of the Ordinance.

16.  Section 37ZT of the Ordinance which deals with late filing of notice of appeal has been amended on 1 August 2021. As the NOA was filed on 18 March 2019, the pre-amendment version of section 37ZT (“Old s37ZT”) is relevant to this application.

17.  Subsection (1) of the Old s37ZT provided that if a notice of appeal was filed after the expiry of the 14-day period referred to in section 37ZS(1) of the Ordinance, it had to include an application for late filing of the notice which had to include a statement of the reasons for late filing of the notice accompanied by all available evidence relied on in support of the reasons.

18.  Subsection (2) of the Old s37ZT provided that the Board had to decide as a preliminary decision without a hearing whether the Board allowed the late filing of the NOA. This was what the Board had done by the Board’s Decision. The Board refused to allow the late filing of the NOA.

19.  Subsection (2) of the Old s37ZT further provided that in deciding whether to allow late filing, the Board might only take account of:

(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.

20.  In this case, the DOI Decision was the relevant notice of decision. The Board found that the deadline for the Applicant to file the NOA fell on 31 January 2019. Thus, the Applicant was late for 46 days. The Board considered the lateness “lengthy”. (§10 of the Board’s Decision)

21.  The reasons for late filing of the NOA provided by the Applicant were that he went through a period of “emotional trauma”, could hardly sleep at night, his residence had no lighting and he faced “serious hard time” in his life.

22.  The Board found that the Applicant’s delay of 46 days was serious and significant and his reasons could not explain the serious delay at all. The Board found that the reasons offered by the Applicant could not justify his serious and significant delay. The Board also found that there was no basis for finding that it would be unjust not to allow the late filing of the NOA. It therefore refused the application for the late filing of the NOA.

23.  The 3-stage approach alluded to in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 (3 March 2016) in dealing with late filing of notice of appeal in non-refoulement claim was affirmed by the Court of Appeal as applicable in Hong Kong in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430.

24.  In Re Khan Kamal Ahmed (supra) the Court of Appeal pointed out that as the last of the 3-stage enquiry alluded to in the Begum case, where there was a serious or significant breach for which no good reason was given, the decision maker moved to evaluate all the circumstances of the case with a view to dealing justly with the application. It was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor. (emphasis added) (§§18 and 20 of the judgment)

25.  The Board was fully aware of the legal requirement when it stated in §9 of the Board’s Decision that:

“I must consider the statement of reasons, any accompanying documentary evidence relied upon (if any) and any other relevant matters of facts within the knowledge of the Board in order to decide, as a preliminary decision without a hearing, whether the [Applicant] is allowed the late filing [of the NOA].” (emphasis added)

26.  In §§10-19 of the Board’s Decision, the Board set out its consideration of the late filing application. The Board considered the reasons for late filing stated in section 5 of the NOA and found that: “the statement of reasons as advanced are, in my view, just not reasons. … … Assuming the purported reasons amount to reasons (which I do not consider to be), they are not justifiable reasons.” (§§13-14 of the Board’s Decision) The Board was not satisfied that the purported reasons amount to a special circumstance that the application for late filing of the NOA should be allowed. (§16 of the Board’s Decision)

27.  In considering the Applicant’s application for late filing of the NOA, the Board only considered whether reasons for late filing advanced by the Applicant had showed special circumstances that the application should be allowed. The Board did not go further to consider the merits of the Applicant’s case.

28.  In Re Qasim Ali (supra) the Court of Appeal stated that: “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.” (§25 of the judgment)

29.  The following remarks of the Court of Appeal made in Re Khan Kamal Ahmed (supra) equally apply to this case:

“19. In this case, the Board stopped after the 2^nd stage, noting that the applicant had not provided any reason for the delay. It had not taken account of any other facts or circumstances of the case.

20. We agree with the Judge that it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

30.  It is reasonably arguable that the Board had erred in law in refusing leave for the Applicant to file the NOA out of time in this case without considering the merits of the Claim.

Conclusion

31.  For reasons stated above, I am 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 the Po Fun Chan case (supra).

32.  I note that above is not exactly how the Applicant argued this application in the Form 86 and the Supporting Affidavit. However, I bear in mind the high standards of fairness required from this court and the obligation of this court in conducting rigorous examination and anxious scrutiny on the Board’s Decision on top of argument put forward by the Applicant for his application in dealing with claims for non-refoulement protection.

33.  I would grant leave to the Applicant to apply for judicial review. In accordance with Order 53 rule 5 of the Rules of the High Court, the Applicant should file and serve an originating summons within 14 days from the date of this judgment.

34.  The originating summons should set out the ground that the Board had failed to consider the substance of the non-refoulement claim which was a relevant matter of fact within the Board’s knowledge within the meaning of the then section 37ZT(2)(b) of the Ordinance at the relevant time, i.e. 18 March 2019.

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