RE EDWEAD JOHN also known as EDWEAD SHAIBU

CAMP 99/2019

[2020] HKCA 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 99 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 76/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 8 February 2018 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 8 March 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 12 May 2015 and 28 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Ghana.  He entered Hong Kong while travelling to the United Kingdom.  He was found to be in possession of a forged passport and was arrested on 15 November 2003.  He was sentenced to 6-months imprisonment.  He lodged a non-refoulement claim on 14 January 2009. 

3.  The applicant’s claim was based on threats from his tribe people due to his alleged involvement as a land guard.  He claimed to have offered armed service to land owners and tribal chiefs.  The details of the applicant’s claim have been summarised by the judge at [2] to [4] of the CALL-1 form.

4.  By a Notice of Decision dated 12 May 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 28 November 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 6 December 2016, the Board dismissed the appeal on 8 March 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [67] of the Board’s Decision, the Board found that the applicant’s case was not credible.

The judge’s decision

7.  The applicant filed a Form 86 on 14 March 2017 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 14 March 2017, the applicant advanced the following grounds for judicial review which are summarised below:

(1)  that his earlier application to the UNHCR dated 6 May 2005 regarding the circumstances of his fleeing to Hong Kong “has never been recorded in all his interviews with the Immigration of Hong Kong”;

(2)  that the evidence used by the Board was “unfair because it was based on Country of Origin’s report without local news”; and

(3)  that he wishes to challenge the decision with the “local news evidence” in relation to which he attached to his affirmation two articles printed from the internet.  

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [18] of the CALL-1 form:

“14. For the document under (a) it is necessary to just quote what the applicant at that time stated to UNHCR the following to note the discrepancies in the various accounts given by him that he was a Liberian instead of a Ghanaian referred to above by the Board:

‘… All this and many other form of persecution that I face in Ghana simply because of what as happen that a declaration by the minister of defense that Liberians in Ghana are part of a network to carry a coup in Ghana as they have been Liberia involvement in many regional conflicts, this has brought hatred and persecution to me because I have been involve with many land leaders in Ghana because there is no any jobs as we Liberians and we a very strong team for the land guard and when I come to Hong Kong hearing the leader has been killed in the bush, it was set up by some of the land leaders because we are not Ghanaians that is the reason why I am afraid for my life.’

15. Apart from the fact that, and as pointed out by the Court of Appeal in TK v Michael Jenkins, CACV 286/2011, 21 November 29012, within reasonable bounds it is for the applicant to conduct his own investigation and obtain information and materials that he requires to prove his case, and therefore had he produced this document to the Director or the Board at the time of their assessment of his claim, if he indeed had done so, I am unable to see how it would assist him at all in advancing his case. In fact, quite to the contrary, I would have no doubt that both the Director and the Board would still come to their same conclusion over his credibility and his claim.

16. As for ground (b), in the absence of any particulars or specifics provided by the applicant, and given the numerous objective COI already considered by both the Director and the Board, I do not find any procedural unfairness on their part in their assessment and conclusion that the applicant has failed to establish that he faces any real risk if he returns to Ghana.

17. Of the two pieces of ‘local news evidence’ under (c) which the applicant exhibited to his affirmation and with which he wishes to challenge the Board’s decision, clearly the first piece which is headed ‘Regional News of Thursday, 3 November 2016 : Land guards strike at Amanfrom again’ could have been produced to the Board by the applicant during his oral hearing on 6 December 2016 or at any time before it reached its decision in March 2017 but which he did not, while it is not clear what date is the second piece, it is still for the applicant to explain why it was never produced until now, but be that as it may, evidentially both referred to land guards activities and their related problems in Ghana, of which the Board had clearly taken into account in its consideration and assessment of the applicant’s claim before arriving at the conclusion that his credibility is decisive of his appeal on all relevant grounds.

18.    In the premises and for the reasons given, I do not see any merits in any of the grounds relied on by the applicant in this application, and with rigorous examination and anxious scrutiny, nor do I find any error in law or procedural unfairness in the decisions of either the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of his claim.  Accordingly I am not satisfied that his intended application for judicial review is reasonably arguable, and I therefore refuse his leave application.”

11.  According to the court’s records, a copy of the CALL-1 form and the sealed copy of the deputy judge’s order were sent to the applicant on 8 February 2018.

Application for extension of time to appeal and grounds for appeal

12.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 29 August 2018, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Bruno Chan on 30 October 2018.

13.  By a summons dated 20 May 2019, the applicant renewed his application for an extension of time to appeal before this court.  He did not give any ground of appeal in either the summons or the affirmation in support of the same date. 

14.  The applicant exhibited some documents to his affirmation dated 20 May 2019.  In a “personal letter for more explanation”, the applicant submitted that the general public in Ghana feel insecure.  He also referred to and exhibited a number of news articles printed from the internet, which he said demonstrated the danger and lawlessness prevailing in Ghana.

15.  In his skeleton submissions dated 6 June 2019, the applicant basically repeated the matters in the “personal letter for more explanation” exhibited to his affirmation dated 20 May 2019.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

17.  The applicant has not provided any explanation for his delay in bringing the intended appeal in the summons and affirmation dated 20 May 2019.  We nonetheless go on to consider the merits of the intended appeal.

18.  The applicant did not identify any error on the part of the judge.  There is therefore no viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

19.  As we have noted, the applicant sought to adduce new evidence to show the danger and lawlessness prevalent in Ghana.  We have not taken account the new evidence, as it does not meet the requirements for adducing fresh evidence on appeal.  There is no suggestion that it could not have been obtained for the hearing below. Nor would it be likely to have had any impact on the decision below.

20.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 20 May 2019 is dismissed accordingly.

21.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.