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HCAL 574/2019
[2022] HKCFI 705
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 574 OF 2019
BETWEEN
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Camara Aboubacar |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by The Honourable Mrs Justice Campbell‑Moffat:
Leave to apply for judicial review be refused.
Observations for the Applicant:
1. This is an application for judicial review of the decision of the Adjudicator to refuse late filing of a Notice of Appeal/Petition against the Further Decision of the Director in respect of BOR2. As the background to the matter is of relevance to that decision, the applicant’s immigration history and a short summary of his basis of claim have been included.
Procedural history
2. The applicant entered Hong Kong legally on 3 October 2009 on a visitor’s visa but overstayed. He was arrested by the police on 20 October 2009 and was transferred to the Immigration Department two days later. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 24 October 2009 and was released upon recognisance on 6 November 2009. His NRF claim form was submitted on 9 December 2014 and dealt with under the USM[1].
3. The applicant attended a screening interview on 6 February 2015. The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 8 May 2015 and by Notice of Further Decision (re BOR 2) on 10 February 2017. He appealed the Decision dated 8 May 2015, to the Torture Claims Appeal Board (“the TCAB”), which was received on 15 September 2015. The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), considered his Appeal/Petition under s37ZT of the Immigration Ordinance, Cap 115 and paragraph 9 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme as it was out of time. He refused the applicant’s Appeal/Petition on 29 August 2016. No other action was taken in respect of that decision by the applicant. The applicant also sought to appeal the Further Decision of the Director dated 10 February 2017. His Notice of Appeal/Petition was filed on 28 April 2017 and was 2 months and 1 day late. His appeal was once more refused on 15 February 2019 after consideration of the same legislation.
4. On 28 February 2019, the applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review of the decision of the Adjudicator dated 15 February 2019, which was in respect of his claim under BOR2 only. This was within time. He did not request an oral hearing. The matter was therefore considered on the papers.
Background
5. The applicant is a Guinean national. He was born on 1 January 1968 in Conakry, Guinea. He is Soussou and a Christian. He completed both primary and secondary education in Guinea.
6. Between 2002-2007, the applicant was working as a voluntary warden within the Guinean Prison Service at Cirreter. This was during a period of political unrest. The President at that time was Lansana Conte. His son, Ousmane Conte, was a commander in the army. In 2007, Ousmane Conte arranged to have five corpses delivered to the prison in Cirreter to be chopped into pieces by the applicant. He refused. As a result, he was then taken to Coundara in handcuffs and placed inside an electrified container for a week. This container was situated next to the sea such that when the seawater made contact with the container, the applicant was electrically shocked. After a week, the applicant was returned to the prison at Cirreter and incarcerated for 11 months. During that time, he maintains that he was given little food and became ill. When taken to hospital he escaped and returned home to Hamdallye. At some point in 2008, the applicant’s family home was destroyed by the army. His mother was taken in by neighbours but the applicant travelled to Cobaya District to stay with friends. Whilst there, he and a group of friends set up a political resistance group called MDDR[2], seeking the return of land from the current President Captain Dadiss Camara.
7. In 2009, 200-300 members of MDDR went to meet with the President. The applicant spoke to him on their behalf asking for the return of land and for the President to resign. The applicant and other members of his group were threatened with being killed but were allowed to leave. Subsequently, the applicant’s home village was the subject of an army attack and people were arrested. Fearing for his safety, the applicant asked his family for help to leave Guinea. His mother arranged for a passport, China visa, and paid for air tickets to Guangzhou via Senegal and Morocco. She also enlisted the help of the local police chief, who assisted him at the airport when he left on 20 June 2009. He arrived in Guangzhou on 5 July 2009. Between July and October 2009, the applicant maintains he travelled to Hong Kong a number of times.
8. Several years had passed by the time that the applicant was interviewed in 2015. The political regime had changed and neither Lansana Conte (since dead) nor Dadiss Camara (incapacitated after an assassination attempt) were in power. Ousmane Conte had been imprisoned for drug trafficking. MDDR was defunct. The applicant maintained however that the continuing threat was from the army, who had seized his home and land.
Decision of the Adjudicator
9. The filing of the Notice of Appeal/Petition was just over two months late. The Adjudicator noted that the statutory regime for the late filing of the Notice of Appeal is strict. The burden was upon the applicant to establish his claim and to comply with the time limit[3]. The applicant simply maintained “I have forgotten but (please) forgive me.”
10. The Adjudicator’s discretion to permit late filing of a Notice of Appeal is regulated under s37ZT of the Immigration Ordinance, Cap 115. The Board may only take into account the statement of reasons provided in the application for late filing; the documentary evidence in support of the statement of reasons and other relevant matters of fact known to the Board. The Adjudicator may allow the late filing of the Notice of Appeal/Petition where it would be unjust to refuse his application[4]. This was not the first time the Adjudicator had considered the position of the applicant under this statutory regime. He noted that there was no documentary support in addition to that material within the papers upon which he could exercise his discretion given the limited nature of the material available.
11. The process for consideration of an application for late filing of a Notice of Appeal/Petition is carried out without a hearing[5] by way of preliminary decision. The Adjudicator was aware of subsections 1-4 of s37ZT. In The Secretary of State for the Home Department v Begum [2016] ECWA Civ 122, 3 March 2016 the Court alluded to a three-stage approach which is:
(i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. If the breach is serious or significant, the decision maker then considers the second and third stage;
(ii) The second stage is to consider why the failure occurred. If there is a serious or significant breach and no good reason was given for the breach, then the decision maker moves to the third stage;
(iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. In considering all the circumstances of the case, the decision maker also takes into account (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders.
12. Whilst the Adjudicator focused upon the reasons for delay on both occasions, it is clear[6]that he had studied all of the papers available to him to find some support or connection to the explanation of the applicant on the first occasion in which he was late. On the second occasion, and the occasion against which the applicant now seeks a judicial review, there was nothing at all from which the Adjudicator could derive any cogent reason for delay.
Leave to apply for judicial review
13. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. Or, as in this case, implement the strict procedural requirements of the process. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the Decision of the Adjudicator, it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application, which was out of time.
Grounds of review
14. There were no grounds of review. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.
Conclusion
15. Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers carefully as the delay in both of his appeals resulted in no re-hearing of the underlying claim. Be that as it may, the applicant was late twice. He provided no proper explanation for his delay and there was nothing within the papers before the Adjudicator upon which he could exercise his discretion. This claim is brought by the applicant. The onus is upon him to indicate on what basis he seeks to persuade the court. It is not for the Court to make his case for him. I have not found any error of law or procedure. There can be no criticism of the determination of the Adjudicator, which was open to him on the papers[7].
16. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.
Dated the 15th day of March 2022.
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(Trista Wong) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must: |
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a) file any notice of appeal within 14 days from the date of judgment or order; and
b) serve any notice of appeal on the respondent/s and such interested parties as may be directed by the court; and
c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the registrar;
(i) a copy of the sealed judgement or order and copy of the reasoned decision; and
(ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice Order 59, rule 5(1); and
d) the registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served Order 59 rule 5(3); and
e) comply with Order 59 the Rules of the High Court to properly progress the appeal. |
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Sent to the Applicant
on 15/03/2022
Camara Aboubacar
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15/03/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2244/15/9/97/GIN9
BOR 487/17/4/136/GIN1
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 964/14 (formerly
RBCZ 2877/09) [T7S38]
RBCZ 9001715/16 (formerly RBCZ 2877/09) [T7S38]
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Unified Screening Mechanism
[2] Mouvement Dadis Ne Doit pas Rester au Pouvoir
[3] S37ZA(1)(b) Immigration Ordinance, Cap 115
[4] S37ZT(3) Immigration Ordinance, Cap 115
[5] 37ZT(2) Immigration Ordinance, Cap 115
[6] Decision of TCAB dated 29 August 2016 [10]
[7] Nupur Mst v Director of Immigration [2018] HKCA 524
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