NJIE YUSUPHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1801/2019

[2024] HKCFI 2405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1801 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 1 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 1 May 2019. His application was filed on 28 June 2019, which is late for more than one and a half months. This issue will be dealt with below.

2.  The applicant asked for a hearing. However, he was absent on the hearing day on 5 August 2024 without prior notice to the Court. I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 49, is a Gambian. He entered Hong Kong as a visitor on 28 May 2014 and he overstayed since 27 August 2014. The applicant surrendered to the Immigration Department on 28 August 2014 and made a non-refoulement claim on 26 September 2014. The claim was made on the basis that, if refouled, he would be seriously harmed or even killed by members of Alliance for Patriotic Reorientation and Construction (“APRC”) because he protested against them. He also claimed that he was wanted by the police for escaping custody.

5.  According to the applicant, he joined the United Democratic Party (“UDP”) in mid-2003 and was involved in youth mobilising in his locality. In around November 2011, the applicant together with hundreds of UDP members had a conflict with APRC supporters during a rally. Many UDP members including the applicant were arrested and were beaten with sticks in the police station. Although they were subsequently released, they were warned not to join any protest movements again, otherwise they would be jailed.

6.  On 18 April 2014, the applicant and his fellow UDP members were arrested while distributing UDP flyers and leaflets. They were then locked up and were physically assaulted at the police station every day. After two weeks of detention, the detainees sustained serious injuries and were taken to the hospital.

7.  Around two weeks thereafter, the applicant managed to escape from the hospital and took a boat to Senegal on 19 May 2014. He contacted his wife and was informed that the police had come to his home looking for him. On 23 May 2014, the applicant left Senegal for China via Kenya. Eventually he arrived in Hong Kong on 28 May 2014.

8.  The applicant maintained contact with his wife while in Hong Kong and was told that the police were still seeking for his whereabouts. The applicant was of the view that he could not seek protection from the police because he was wanted by them and was also an opponent of the APRC-led government. He also considered internal relocation not viable because he believed that he could easily be located by the Gambian authorities.

9.  Details of the applicant’s story can be found in paragraph 12 of the Director’s Decision dated 25 October 2016 (“the Director’s Decision”).

The Director’s Decision

10.  The Director considered the applicant’s claim in relation to the following risks:

(a)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)  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”); and

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

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment received by the applicant indicated that he was not specifically targeted, so that the risk of harm was not as imminent as he claimed [19]; (ii) the misbehaviour of individual police officers could not be inferred as the stance of the Gambian government and that there was also no evidence that the applicant would not receive a fair trial [20]-[21]; (iii) state protection would be available [22]-[25]; (iv) internal relocation would be viable [26] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[37] or Torture risk [38]-[40].

The Board’s Decision

12.  The applicant filed his Notice of Appeal against the Director’s Decision on 5 January 2018, which was 13 months and 26 days beyond the stipulated appeal timeframe [3]. The applicant’s reasons for late filing were that (i) he was homeless when he received the Director’s Decision; (ii) his mother passed away in the same month in October 2016; (iii) life was difficult and stressful for him and (iv) he was sent to prison for ten months and then to Castle Peak Bay Immigration Centre after his arrest on 16 December 2016 [4]-[5], [8], [14], [16].

13.  The Board considered the delay was serious and significant. The reasons given by the applicant were also unacceptable and simply showed that he had not promptly dealt with the appeal within the prescribed time [17]-[19].

14.  Based on such findings, the Board found it fair and just to disallow the applicant’s late filing [20]. His appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

15.  The applicant has filed Form 86 dated 28 June 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

17.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.  It is obvious that the Board had not considered the merits of the applicant’s case and refused to extend time for him to file the notice of appeal because he was late. This is inconsistent with the decisions of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, in which it was held:

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

20. … …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. ”

20.  I note that section 37ZT relating to late filing of the notice of appeal at the Board was revised in 2021. Under the revised version, the Board is only required to take account of the statement of reasons for the late filing of the notice of appeal. However, the revised version has no retrospective effect under the section. The above Court of Appeal decision is binding authority before the revised version of section 37ZT.

21.  As such, the Board’s decision commits an error in law. The applicant therefore has a realistic prospect in his intended judicial review of the Board’s Decision.

DISPOSITION

22.  I grant an extension of time for the applicant to file Form 86 and also grant leave to the applicant to apply for judicial review of the Board’s Decision.

23.  The applicant must issue the originating summons within 14 days from the date of this Order in accordance of Order 53, rule 5 of the RHC.

24.  A copy of this Judgment shall be sent to the Department of Justice, which shall take appropriate steps to liaise with the applicant for the hearing of the originating summons.