FERNANDO NAIDAPPULAGE SAMEERA NUWAN CHINTHANA v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1654/2021

[2022] HKCFI 583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. HCAL 1654 of 2021

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.     This is the applicant’s application for leave to apply for judicial review of the Decision dated 24 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application dated 6 December 2021 is late for about 3 years and 1 month. I shall deal with this issue below.

2.     The applicant requested for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”). He is now being detained by the Correctional Services Department and he was escorted to appear before the Court.

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

The applicant

4.     The applicant is a national of Sri Lanka.  He entered Hong Kong on 29 August 2004 as a visitor.  He did not depart when his limit of stay expired and had overstayed.  On 20 March 2006, he was arrested by the police.  His torture claim lodged on 25 March 2006 was later treated as withdrawn on 26 January 2013 due to his failure to return the questionnaire on time.  On 16 April 2013, he lodged a non-refoulement claim.  Since the applicant’s request to reopen his previous torture claim was rejected, his non-refoulement claim was assessed on all applicable grounds other than torture risk[1] by the Director. 

5.     The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Dammika and his associates.  According to the applicant, Dammika was a criminal and held a position in United National Party (“UNP”). In around 1996, the applicant witnessed that Dammika attempted to rape the applicant’s mother.  Their report to the police was of no avail and the only punishment on Dammika was that his reputation in the village was impaired. Shortly after, Dammika was attacked by the applicant’s cousin for revenge.  In 2004, Dammika stabbed the applicant’s mother while the gangster attacked the applicant with a wooden pole.  Both of them were injured and received medical treatments.  Meanwhile, Dammika damaged the applicant’s house and threatened to kill him and his mother.  Out of fear and worried that Dammika would trace him, the applicant eventually fled to Hong Kong for protection.  Details of the applicant’s claim are set out at paragraphs 24 to 59 of the Director’s Decision as described below.     

The Director’s Decision

6.     The Director considered his application in relation to the following risks:

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

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”).

7.     In light of the applicant’s absence in the screening interviews and his failure to provide explanation or justification for the absence, the Director proceeded to consider his claim on the available documents.  By a Notice of Decision dated 11 July 2017 (“the Director’s Decision”), the Director refused his claim because (i) the low frequency and intensity of past ill-treatment were indicative of an unlikelihood of future risk of harm [73]-[89]; (ii) state protection was available to him [90]-[92]; and (iii) internal relocation was an option open to him [93]. 

The Board’s Decision

8.     The applicant appealed the Director’s Decision to the Board.  He only filed his notice of appeal/petition on 16 October 2017, which was more than 2 months out of time.  The Board therefore considered whether it should allow the applicant’s late filing of appeal/petition.

9.     The applicant’s reasons for late filing were that he was detained in CIC on 7 August 2017 and he had no idea on the progress of his case; that he was inexperienced and illiterate; and that a friend helped him to fill in the Notice of Appeal [15].

10.     In the applicant’s statement of reason, he explained that he had been detained since 7 August 2017 and, being inexperience and illiterate, he was unable to file the notice of appeal/petition on time. 

11.     The Board refused to accept such explanation.  It found that the appeal form was attached to the Director’s Decision which was served on the applicant on 11 July 2017 with instructions on the time limit for his appeal and the address of the Board.  The applicant could have filed the appeal on or before 25 July 2017, which was earlier than his detention on 7 August 2017. Notice of Appeal was sent to the applicant at his last known address on 11 July 2017 and the mail was not returned by the dead letter service. The applicant’s bare statement that he had no idea on the progress of his case was not sufficient to explain his late filing of the Notice of Appeal. The Board had also taken into account that according to the Director’s Decision, the applicant had received formal education for 11 years up to G.C.E level in a college in Sri Lanka from 1990 to 2001. The Board also said that he had legal assistance from the Duty Lawyer’s Scheme (“DLS”).

12.     As a result, the Board concluded that the applicant failed to provide a good reason for the lengthy delay [15].  It further stated that it had evaluated all the circumstances and decided to refuse the applicant’s late filing of the notice of appeal/petition.

Application for leave to apply for judicial review

13.     The applicant filed Form 86 on 6 December 2021 for leave to apply for judicial review of the Board’s Decision.

14.     In his affirmation in support of his application, he said:

“…the board refused my application for late filing without giving me a chance to explain my situation back to my country not all evidence mention to the decision.”

DISCUSSION

15.     As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The delay of over 3 years is obviously significant and serious. Without good reasons for the delay, the applicant’s application should be dismissed. I shall, nevertheless, first consider the merit of the applicant’s case.

16.     The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

18.     In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13(1).… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.     This issue for the intended judicial review is whether the Board’s decision not to extend time for the applicant to file his Notice of Appeal was rightly made in compliance with public law.

20.     The Board had given a number of reasons for its decision not to extend time for the applicant to file the Notice of Appeal. They are all valid reasons save for the one saying that the applicant was assisted by DLS because DLS ceased to assist the applicant on 2 February 2017. It is therefore plausible that the applicant might not understand the warning on the time limit for appeal. However, this reason cannot stand since the applicant should seek advice immediately upon receipt of the Director’s Decision, which is a legal document concerning his claim.

21.     The adjudicator stated in the Board’s Decision that he had evaluated all the circumstances in this case and arrived at the conclusion as he did. This case was before the Board prior to the amendments to section 37ZT of the Ordinance, with the commencement date of 1 August 2021, the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 at §§16-20, which requires the Board to consider the merits of the case by reference to the materials before him, including the Director’s Decision and other relevant documents, should apply. By stating “all the circumstances in this case” is insufficient to inform this Court that the Board had complied with the Court of Appeal’s decision although the Board had referred to the Director’s Decision for the applicant’s education background. The question is whether this deficiency will give the applicant a realistic prospect in his intended appeal according to the Court of Final Appeal’s decision in Peter Po Fun Chan (2007) 10 HKCFAR 676 at §§14 & 15.[2]

22.     The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743 held that the Court is entitled to consider the Director’s Decision in the assessment of the application as to whether leave should be given to the applicant to apply for judicial review:

“184. … … it is generally for the applicants to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3. The Court is also entitled to take account of the latest available evidence and so was entitled to consider the contents of the Director’s letter [Director’s Decision] … …”

23.     The Director refused his claim because (i) the low frequency and intensity of past ill-treatment were indicative of an unlikelihood of future risk of harm [73]-[89]; (ii) state protection was available to him [90]-[92]; and (iii) internal relocation was an option open to him [93]. 

24.     The applicant before me said that he did not understand the reasons of the Director’s Decision or the Board’s Decision. I therefore explained those Decisions to him. He said that he would like time to obtain some documents to prove his case. I asked him to explain what documents could he use to refute the country of origin information, which was prepared by the foreign countries. He agreed that he could not find documents for this purpose. He finally confirmed that he understood the situation and he had nothing more to say.

25.     There is no evidence from the applicant to refute those grounds in the Director’s Decision. Nor has he raised any valid ground to challenge the Board’s Decision.

26.     There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

27.     The applicant has also failed to give any good reason for his delay in filing Form 86 for this application.

CONCLUSION

28.     I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review.  Accordingly, I dismiss his 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

[1] the torture risk under Part VIIC of the Immigration Ordinance, Cap.115

[2] “14.  The requirement for leave to apply for judicial review is an important filter introduced by statute.  Section 21K(3) of the High Court Ordinance, Cap.4 and Order 53 rule 3(1) of the Rules of the High Court.  Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges. 

15.   The test which should be applied is the arguability test. … A reasonably arguable case is one which enjoys realistic prospects of success.”