DIARRA MODIBO v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 424/2018

[2020] HKCFI 100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 424 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Mali who arrived in Hong Kong on 25 July 2014 with permission to remain as a visitor up to 7 August 2014 when he did not depart and instead overstayed and was arrested by police on 15 August 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Mali he would be harmed or killed by his creditor for failing to repay his loans and/or by terrorist attacks from Islamic extremist groups for religious reasons.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Tripoli, Al Baybha, Libya where his Malian father was a professor teaching in a local university.  In 1993 his father moved the family to Ivory Coast to teach at the university there until 2002 when they moved back to Bamako,Mali where the Applicant completed his secondary school education before enrolling in a university in Beijing, China in 2008.

3.  In 2011 he started his own business in China by borrowing a loan from an acquaintance in Mali to be repaid within one year for purchasing electronic goods in China for sale in Mali, but when his business did not fare well in 2012, he was unable to repay his loan and his creditor started to make death threats against him that he was afraid to return to Mali, and so he left China for Hong Kong where he overstayed, during which he was also told by his mother of the many terrorists attacks by Islamic extremist groups such as Boko Haram and Al Qaeda in Mali that his family found it too dangerous to live there and had all moved overseas, and as he himself had fathered two children out of wedlock in breach of Islamic creeds which may make him a target of the Islamic extremist groups, he therefore raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 20 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by police on 29 January 2015 for possession of dangerous drug for which he was given a four-week suspended sentence, but on 22 March 2015 he was again arrested by police, this time for drug trafficking, for which he was subsequently sentenced to 12 months’ imprisonment while the earlier suspended sentence was also activated and which he served consecutively.

5.  By a Notice of Decision dated 23 October 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

6.  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 creditor and the Islamic extremist groups upon his return to Mali as low due to the absence of past ill-treatment from them, that in the absence of any 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 Mali with a large population of 12 million people spread across a vast territory of more than 1.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Mali away from his home district in populous regions such as Bamako or Sikasso where it would be difficult if not impossible for his creditor or the Islamic extremists to locate him.

7.  By a Notice of Further Decision dated 5 December 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  On 21 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and in Section 2 of his Notice of Appeal for his grounds of appeal, he repeated his claim for non-refoulement protection as he would face ill-treatment in his home country in Mali, and in Section 5 he also included an application for late filing of his Notice of Appeal with the following statement of his reasons for the delay:

“ Because I just received it 16/02/17 and before when I was in prison in Hei Lau Chau I have sent before but the correctional didn’t send it so as I have told you before my intention was to make appeal since then last December.”

9.  As section 37ZS of the Ordinance requires that a notice of appeal must be filed within 14 days of the decision, which in the Applicant’s case expired on 21 December 2016 after taking into account of the time for the decision to reach him by post, hence he was two months late with his Notice of Appeal. 

10.  Pursuant to section 37ZT(2) of the Ordinance, the Board dealt with the Applicant’s application by way of a preliminary decision without a hearing, and by its decision dated 21 March 2018 the Board refused to allow the late filing of his Notice of Appeal.

11.  In its decision the Board found the Applicant’s explanation that he was at that time in prison just a bare assertion unsupported by evidence and refused his late filing for the following reasons:

“ 10. The statement of the Applicant that the Correctional Services Department had not sent out his earlier form is no more than a bare assertion without any evidence whatsoever in support and I reject it. The Applicant has acknowledged that he had received the form earlier in December 2016 when he was in Hei Ling Chau and could have asked for assistance from the Duty Lawyer Service, to whom the Notice of Further Decision had been sent, or indeed the Welfare Officer at Hei Ling Chau.

11. There are no other relevant matters of fact within my knowledge amounting to special circumstances which would make it unjust not to allow the late filing of the Applicant’s notice of appeal.

12. Accordingly I refuse the application.”

12. As noted above, the Board’s decision was handed down on 21 March 2018, but somehow on 15 March 2018, six days before the Board’s decision, the Applicant filed his Form 86 for leave to apply for judicial review of “The Decision of the Director of Immigration TCAB 22 January 2018”, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he stated that he has decided to lodge an appeal against the rejection of his case regarding BOR 2 which was rejected without a hearing.  

13.  I also note that there is no decision made by the Director on 22 January 2018,and at any rate, the Court of Appeal has held in Re Moshsin Ali [2018] HKCA 549 that the decision of the Director is not susceptible to judicial review once a non-refoulement claimant has pursued an appeal to the Board. Since the Applicant had already appealed to the Board against the decisions of the Director, and given the appeal to the Board involves a rehearing of his claim determined by the Director rather than an appeal from the Director’s decision as the second tier of the screening process, I propose to treat the Applicant’s Form 86 as one to apply for judicial review of the Board’s decision, and to focus on its reasons in refusing to allow the Applicant’s late filing of his Notice of Appeal.

14.  Given the fact that the Applicant is unrepresented, and that the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, and while I agree that the Board was entitled not to accept the applicant’s explanation of being in prison for his late filing of the notice of appeal, it seems to me that itdid not proceed to consider other relevant matters of fact within its knowledge, including the merits of the appeal as set out in the Applicant’s proposed grounds in his Notice of Appeal.

15.  In Re Qasim Ali [2019] HKCA 430, the Court of Appeal held that the relevant circumstances which the Board is required to take account of in deciding whether to allow the late filing of a notice of appeal must include the merits of the appeal, as Hon Lisa Wong J stated in the judgment for the Court:

“ 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].”

16.  In the present case, it is in my view reasonably arguable that the Board failed to take account of the merits of the Applicant’s appeal in the exercise of its discretion in deciding whether it would be unjust not to allow the late filing of his Notice of Appeal, thusmeeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

17.  In the premises and for the reasons given, I grant leave to the Applicant to apply for judicial review of the decision of the Board on the ground stated above, and direct that he shall file an originating summons within 14 days of his receipt 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.

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