RE JAGNE MBYE

CAMP 102/2021

[2021] HKCA 1261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 102 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 379 of 2018)

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J U D G M E N T

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 28 July 2020 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of his application.  He had also lodged a written submission on 16 June 2021 to support his application.  

3.  Under Order 59 rule 2A(5)(a)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dated 15 February 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”)  dated 1 June 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of Gambia aged 36.  He entered Hong Kong on 13 June 2014 and was given permission to remain as a visitor up to 11 September 2014.  He overstayed.  He surrendered to the Immigration Department on 9 October 2014, and raised a non-refoulement claim.

6.  The applicant’s claim is based on his fear of being harmed or killed by the Gambian government for assisting his uncle who had been imprisoned on false charges.  The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarised by the Judge in the Form CALL-1 dated 28 July 2020[1] at [2] to [5]. We will not repeat them.    

7.  By his decision dated 1 June 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds.

8.  The applicant appealed the Director’s decision to the Board.  A hearing was held on 25 October 2017, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 15 February 2018, the Board dismissed the appeal.  Primarily, the Board found no evidence of the applicant being pursued by the Gambian authority in the past.  It further noted that following the 2016 election and the resulting change of presidency and government, his uncle was released from prison.  A commission was set up to investigate the affairs of the former president, and there is no indication that the applicant’s uncle is of any adverse interest to the current government.  The Board considered the applicant’s fear of harm to be fanciful and concluded that his claim failed on all applicable grounds.

9.  On 8 March 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He did not put forward any grounds for seeking relief.  He merely stated in the supporting affirmation that he was not satisfied with the Director’s and the Board’s rejections of his claim without reasonable grounds.

10.  The Judge dismissed the application for leave to apply for judicial review and gave his reasons in [9] to [12] of the Form CALL-1 as follows: 

“9. … The Applicant did not put forward any other grounds for his intended challenge, nor did he request for any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

12. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

11.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. 

12.  By a summons filed on 24 September 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 9 December 2020, and by his decision handed down on 25 February 2021[6] refused the application. On 7 April 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.    

13.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted. 

14.  The applicant was late by nearly two weeks[7], which is not insubstantial.  He stated in the summons and the affirmation that he did not get the decision from the court, without providing any details or elaborations.  Like the Judge, we do not consider the applicant has given satisfactory explanation for his delay. In the circumstances, he has to show that the intended appeal has a real prospect of success. 

15.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  In the present application, the applicant has not set out any proposed ground of appeal in his summons and his supporting affirmation. 

18.  In his written submission, the applicant criticised the Director for failing to properly screen his claim or ask about his real problem, and his lawyer for being not helpful.  He also stated that while the Board told him to relocate or get help from the Gambian government, it is in fact not possible for him to move to other places and the Gambian government is his number-one enemy.  He reiterated that he cannot go back to his country as he will be killed by his enemy.

19.  The matters put forward by the applicant do not amount to viable grounds of appeal.  In the first place, he has not pointed to any error in the Judge’s decision and reasons. Further, given the Board’s findings on the change in the country conditions and political situation in Gambia, there is no evidential basis to support his assertion that he will face risks of harm for being related to his uncle. 

20.  We have separately considered the Board’s decision on the applicant’s appeal against the Director’s decision.  We agree with the Judge that it has not been shown there are legal errors, irrationality or procedural irregularities in the Board’s decision, and the intended judicial review application had no prospect of success.  The Judge was correct in refusing to give leave to apply for judicial review and dismissing the application.

21.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  

22.  For the above reasons, we dismiss the applicant’s summons filed on 7 April 2021.