DRAMMEH MAMUDOU v. TORTURE CLAIMS APPEAL BOARD

HCAL 23/2021

[2021] HKCFI 1502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 23 of 2021

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 (counsel for) the Applicant in open court /the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 19 January 2018 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of The Gambia who last arrived in Hong Kong on 14 May 2006 with permission to remain as a visitor up to 12 August 2006 when he did not depart and instead overstayed, and was arrested by the police on 19 July 2008 for which he was subsequently sentenced to prison for 6 weeks. After his discharge form prison and was referred to the Immigration Department for deportation, he raised a torture claim on the basis that if he returned to The Gambia he would be harmed or killed by a fellow villager over a street fighting incident. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in a village in Dippakunda, The Gambia. One day in 2000 while he was on his way to the village market, he saw 2 men fighting in the street, and when he tried to separate them, the men turned against him and fought with him until other villagers intervened and separated them, and the Applicant then left the scene without any injuries.

3.  However, later in the day he was warned by his fellow villagers that one of the men involved in the incident was a soldier who had become angry with the Applicant for interference, and had threatened to come after him with some other soldiers.

4.  Fearing for his life, the Applicant therefore fled from his home village to hide in neighbouring Village Salakunda, but when he heard that that man and his fellow soldiers were looking for him everywhere, he therefore departed The Gambia on 21 April 2005 for Hong Kong, and from there he travelled back and forth between Hong Kong and the Mainland, and on his last trip to Hong Kong on 14 May 2006, he overstayed, and when he was arrested by the police 2 years later, he then raised his torture claim, for which he completed a Torture Claim Form (“TCF”) on 8 October 2012 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer.  

5.  By a Notice of Decision dated 10 January 2013 the Director of Immigration (“Director”) rejected the Applicant’s claim of risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“Torture Risk”) upon finding that his alleged fighting incident was a private personal dispute with a fellow villager without any state or official involvement, that there was no evidence that he had ever been tortured or suffered any severe pain or suffering whether physical or mental, and that in any event state or police protection would be available upon his return to The Gambia that his torture claim failed under the applicable ground.

6.  The Applicant did not appeal against the Director’s decision, but on 1 February 2013 he made a written signification to the Immigration Department for non-refoulement protection, for which he was requested by the Director by a letter dated 3 November 2016 to complete and return a Supplementary Claim Form (“SCF”) on or before 1 December 2016.

7.  However, on 11 November 2016 DLS informed the Director of no further instruction to act for the Applicant in his claim, and when the Applicant failed to return a completed SCF by 1 December 2016, the Director by a written notice dated 14 December 2016 informed him that his non-refoulement claim was treated as withdrawn under Section 37ZG(1) of the Immigration Ordinance.

8.  Six months later on 27 May 2017 the Applicant wrote to the Director to request to re-open his non-refoulement claim, for which he was requested by the Director by a letter dated 19 June 2017 under Section 37ZG(3) of the Ordinance to provide sufficient evidence in writing to satisfy an immigration officer that he had not been able to return the completed SCF as required due to circumstances beyond his control.

9.  As no response had been received from the Applicant, the Director by a written notice dated 5 July 2017 informed him that it had been decided not to re-open his non-refoulement claim due to his failure to provide sufficient evidence that he had not been able to return the completed SCF as required due to circumstances beyond his control.      

10.  On 30 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as he was then outside the 14-day period within which he was required to file his Notice of Appeal (“NOA”) under Section 37ZS(1) of the Ordinance, the Board therefore proceeded under Section 37ZT(2) to determine as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s NOA.

11.  By a written notice dated 19 January 2018, the Board refused to allow the late filing of the Applicant’s NOA upon finding that it was late by more than one month, and that it was not satisfied that there were any special circumstances that would make it unjust not to allow the late filing of his NOA for the following stated reasons:

“7. The Petitioner in support of this application, stated in Section 5 of his NOA:

“I have ear problem before and glad now I can hear.”

8. The Petitioner has not provided any document to support the reasons for not filing the NOA within the statutory period.

9. In the Decision, the Director had stated the reasons why he refused the application for re-opening the case, and that if the Petitioner felt aggrieved by the Decision, he could lodge an appeal/petition to the Board. And in such a case, the Petitioner should file the NOA in the specified form within 14 days from the date of the notice of the Decision. The address for the filing was given in the notice. The Petitioner had not done so accordingly.

10. The Petitioner on page 3 of the NOA said that English was his spoken language. In the ordinary course of events, a Notice to Persons Making a Non-refoulement Claim (the “Notice”) and a blank SCF were given to the Petitioner during a briefing of the Petitioner by an Immigration Officer informing him the requirement to file the completed SCF in time. If the Petitioner had any hearing problem as he now alleged, the problem would have been brought to the attention of the Immigration Officer during the briefing or shortly afterwards.

11. The Petitioner has not provided any documentary proof that this issue was raised when the Notice and SCF were given to him at the briefing. He has also not produced other documentary evidence like medical certificate showing that he had any hearing problem.

12. Even assuming that he had hearing problem, as he had completed his NOA in English by himself, he should have no problem in understanding the Notice and the Decision which are written in English setting out the requirement to file the completed SCF and NOA in time.

13. It is incumbent on the Petitioner to adhere to the time for the filing of the NOA. Considering all the circumstances, I find that the Petitioner has failed to provide any valid reason why he could not have done that in time.

14.  For the above reasons, the Petitioner has not shown any special circumstances to justify the late filing of the NOA under Section 37ZT of the Ordinance and paragraph 9 of the Petition Guide, and I do not consider that it would be unjust not to allow the late filing of the NOA.”   

12.  On 7 January 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or his supporting affirmation of the same date in which he merely stated in both that the decision was not fair or reasonable but without providing any particulars or elaboration as to how it was so or put forward any other proper ground for his intended challenge, nor did he request any oral hearing for his application.

13.  By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

14.  As the last day of the three-month period for him to file his Form 86 fell on 19 April 2018, the Applicant was therefore late by more than 2 years and 8 months with his application, and in considering whether to extend time, the court shall have regard to 9i) 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 HKCA 393.

15.  In the Applicant’s case, a delay of more than 2 years and 8 months must be considered as extremely excessive, for which he did not as noted above provide any explanation, and as the record shows that the decision as sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his such serious delay.

16.  As for the merits, if any, of his intended application, again as noted above the Applicant has not put forward any proper or valid ground for his intended application, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.     

17.  Having subjected the Board’s decision and its reasons for refusing to allow the late filing of the Applicant’s NOA to anxious scrutiny, I am unable to find any error of law or procedural unfairness in the decision or any failure on its part to apply high standard of fairness in its consideration of the Applicant’s application for late filing of his NOA. While I note that the Board did not in its decision appear to have taken into account the merits of the Applicant’s appeal, as it was held to be so required by the Court of Appeal in Qasim Ali [2019] HKCA 430, CACV 547/2018, 8 April 2019 regardless of procedural breaches or lack of explanation therefor (see [26] of the judgment), but in Section 2 of his NOA where he was required to set out his grounds of appeal, the Applicant merely stated as follows:

“I want to appeal, the present I cannot go back to my country. I fight with military, I fight with all party (dangerous for me to go).”

18.  This was the basis of what the Applicant had given to the Director for his earlier torture claim which had already been rejected, and which the Applicant had not lodged any appeal to the Board, therefore it could not in my view form any basis for his appeal against the Director’s subsequent decision in refusing to re-open his non-refoulement claim due to his failure to provide sufficient evidence to satisfy an immigration officer that there were circumstances beyond his control that he had not been able to return his completed SCF as required, which was for all intents and purposes the most important and essential document for his non-refoulement claim required under Section 37Y of the Ordinance so as to commence the screening process thereof by the Director and/or the Board. As such and in the absence of any completed SCF from him, there was simply no factual basis for the Board to take account of or to consider the merits of the Applicant’s appeal. There is therefore simply no merit in the Applicant’s intended application.   

19.  In the premises and for the reasons given, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss 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