NTHALE GILBERT MUASA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 990/2017

[2023] HKCFI 2623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 990 OF 2017

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BETWEEN

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D E C I S I O N

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1.  This is the Applicant’s application by summons filed on 31 August 2023 seeking leave to appeal the order of Campbell-Moffat J dated 7 August 2020 refusing his application for leave to apply for judicial review (the “leave application”) out of time (the “EOT application”).

2.  Having considered the papers, the Court decided that the EOT application has no merit and should be refused. Notice of handing down of the decision on 13 October 2023 was posted to the Applicant on 4 October 2023. At 3:30 pm on 5 October 2023, a Memorandum of Notification of an Application for Legal Aid dated 4 October 2023 in respect of the Applicant was received. Accordingly, the Court decided to hold a hearing on 13 October 2023 to hear from the Applicant if the legal aid stay under Section 15 and Regulation 7A of the Legal Aid Ordinance should not be lifted and the handing down of the decision refusing his EOT application be stayed.

3.  At the hearing, the Applicant resisted lifting the legal aid stay to await the outcome of his legal aid application as he desired to have legal representation to protect and advance his legal rights. He was asked to explain why he did not apply for legal aid when he made the EOT application but waited until this late stage and why it took him more than three years to make the EOT application. He admitted he was aware of the availability of legal aid as he had lived in Hong Kong for nine years. His explanation for the delay in applying for legal aid is that at the beginning he was desirous of seeking private legal representation, but he had no funds. As for the delay in making the EOT application, he said it was because he was unaware of his right to appeal (also see Paragraphs 9 and 10 below).

4.  The Court considered his explanations disingenuous and unacceptable. For reasons as explained in the latter part of this decision, his EOT application is bound to be refused. It would be futile to delay the proceedings by allowing the stay to run its full course. Hence, despite section 15 and Regulation 7A of the Legal Aid Ordinance, this Court ordered that the stay be lifted and the decision be handed down.

5.  By way of background, the Applicant is a national of Kenya who overstayed his visa. Then he lodged a non-refoulement claim by way of four written representations in 2014. He completed non-refoulement claim form (“NCF”) in 2016 and attended a screening interview. His claims were rejected by the Director of Immigration (the “Director”) by his Notice of Decision dated 27 May 2016 (the “Notice”) and Notice of Further Decision dated 24 April 2017 (the “Further Notice”). His appeals against the two Notices were dismissed by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) by its decision dated 19 May 2017 (the “Decision”).

6.  On 1 December 2017, the Applicant filed the leave application seeking leave to apply for judicial review of the Board’s Decision. Under Order 53, rule 4, of the Rules of the High Court, the leave application was filed three months and twelve days out of time. The Applicant offered no explanation for the delay. Having scrutinized the Notice, the Further Notice and the Decision, Campbell-Moffat J was satisfied that there were no error of law or procedure and that the Applicant’s intended judicial review did not have a realistic prospect of success. Hence, she refused his leave application.

Legal principles applicable to application for extension of time to appeal

7.  Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision. Thus, by 31 August 2023 when the Summons was filed, this EOT application was three years and ten days out of time.

8.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted.

Length of delay and reasons for the delay

9.  The leave application was more than three years out of time. By any standard, the delay is very substantial in the context of a 14-day period of appeal. In his four-page statement attached to his supporting affirmation, the Applicant gave the following explanation for his delay in appealing:

(1) The delay was due to his lack of knowledge about the procedure;

(2) He married on 3 August 2020 and filed an application for independent visa. As a result of misinformation received, he was led to the assumption that his court case will be “halted”;

(3) His wife could not work due to the pandemic and hence they could not afford instructing a solicitor; and

(4) He was suffering stress as a result of starting a family, the birth of his son in 2019 and the pandemic which led to his confusion and negligence in proceeding with his case.

10.  The time limits imposed by the legislation are meant to be observed. Ignorance of the law does not relieve a litigant from his burden of observing the time limits in the proceedings and finding out about the law and procedure. His assumption that his court case will be “halted” is not well-founded. Lack of means to instruct lawyer is not an acceptable explanation for the delay as there is nothing to prevent a litigant from acting in person. Without being unsympathetic, his financial and family stress can in no way justify a very substantial delay of three years. The Applicant has no reasonable excuse for the very substantial delay.

Prospect of success of the intended appeal

11.  The Applicant advanced three grounds of appeal: (1) error of law, (2) unfairness and (3) lack of knowledge.

12.  In relation to the first ground, the Applicant quoted the definition of “torture” under Section 37U of the Immigration Ordinance, Articles 2 and 3 of the Hong Kong Bill Right and submitted that the central question which ought to be addressed in his claim is whether there is risk to his life if he is refouled to Kenya. Then he said he “[had] not stated his claim to the Director, the Board in the Court”; that “refouling the Applicant to Kenya without hearing his claim in depth is a total violation of the Hong Kong Bill of Right 2 and 3”; and “will amount to a gross error of law and further violates the Persecution Risk.” In essence, his complaint is that he had no opportunity to present or establish his claim and the Board committed a gross error of law by making the Decision without knowing what his claim is and hearing it in depth.

13.  The Applicant is wrong to assert he had not stated his claim and that the Director and the Board decided his claim without hearing his claim in depth. As mentioned in Paragraph 5 above, he had lodged four written representations in 2014, a completed the NCF in 2016 and attended a screening interview. The NCF was prepared with legal assistance from the Duty Lawyer Service while the screening interview was conducted with the assistance of an interpreter and in the presence of his lawyer. The screening interview was in fact an interactive process in which an immigration officer asked questions of the Applicant about his case in a joint endeavor to help him to establish his claim. The Notice and Further Notice totaling 31 pages contain detailed consideration of the Applicant’s case by the Director and the reasons for his decision. As noted by Campbell-Moffat J, “the Director considered his case in some detail and gave him more than one opportunity to make his case.” Clearly, the Applicant had the opportunity to present his case before the Director. His case had been heard and duly considered by the Director.

14.  The Applicant also attended an oral hearing before the Board. The Board gave him the opportunity to testify to reinforce his case. The Board explained its concern about the Applicant’s credibility and matters which it found not plausible and invited his comments. The Applicant took up that opportunity and testified. In the end, though, the Board found him not a credible witness and rejected part of his evidence. The Decision of the Board which consists of 28 pages contain a concise but comprehensive summary of the Applicant’s case, the legal principles relating to the four applicable grounds for non-refoulement protection under the Unified Screening Mechanism, a discussion of the evidence, the credibility of the Applicant, the finding of fact by the Board and the reasons for its finding. The Board considered authoritative and credible country of origin information in coming to its Decision. Not only that the Board had heard him and given him the opportunity to establish his claim, it had also given him the opportunity to address the Board’s concerns and deal with the weaknesses or inadequacies in his case. The Board had heard and properly considered his claim. There is no substance in this ground of appeal.

15.  As for his complaint of unfairness, the Applicant did not give any particulars of the unfairness. He seemed to suggest that the high standard of fairness was breached as he had not been given the opportunity to make out his case to the Director and the Board. This is just part and partial of his error of law ground but under a different label. For the same reasons as explained above, there is no substance in this ground.

16.  As for his third ground based on lack of knowledge, it is the Applicant’s submission that he had no knowledge of the time limit for making the application and had no means to engage the services of a solicitor to make good his lack of knowledge. This lack of knowledge was compounded or aggravated by the misinformation he received. As explained in Paragraph 10, the time limits imposed by the legislation are meant to be observed. Ignorance of the law does not relieve a litigant of his burden of observing the time limits and finding out about the law and procedure. Lack of means to instruct lawyer is not an acceptable explanation for the delay as there is nothing to prevent a litigant from acting in person. As for the misinformation, it is just another form of lack of knowledge. There is no substance in this ground of appeal.

17.  In conclusion, his intended appeal has no prospect of success.

Prejudice to the respondent

18.  If this application is allowed, the prejudice to the proposed respondent and to public administration is obvious. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect genuine victims of persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

19.  For the above reasons, the Applicant’s application for extension of time to appeal is refused. And notwithstanding section 15 and Regulation 7A of the Legal Aid Ordinance, this Court ordered that the proceedings to continue and the decision relating to the Applicant’s application for leave to appeal be handed down.