MANE HAMIROU v. DIRECTOR OF IMMIGRATION AND ANOTHER

CAMP 27/2021

[2021] HKCA 1259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 27 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 294 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 11 January 2019, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to seek judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement claim[1].

2.  On 3 July 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 25 January 2019.  The summons was dismissed by the judge on 7 January 2021[2].

3.  On 25 January 2021, the applicant filed the present summons with the Court of Appeal for a renewed application of extension of time to appeal.

4.  The applicant is a national of Guinea.  He is 31 years old.  He arrived in Hong Kong on 30 November 2014 as a visitor and subsequently overstayed.  He surrendered to the Immigration Department and lodged a non-refoulement claim on 16 January 2015 on the basis that if he returns to Guinea he will be harmed or killed by the Guinean authority including the army that have already killed his father.

The Director’s decision

5.   By a Notice of Decision dated 24 October 2017, the Director rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

The Board’s decision

6.   The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 16, 17 and 26 January 2018 and was represented by duty lawyer.  The Board found that many of the applicant’s contentions are illogical and not reasonably credible.  The Board did not accept the applicant’s case about his father being arrested and killed by the soldiers and about the applicant being arrested or detained by the police.  The Board concluded that the applicant’s account of facts was not credible or plausible and dismissed the appeal on 15 February 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 23 February 2018 for leave to apply for judicial review against the decisions of the Director and of the Board.  He put forward the following grounds for his intended challenge:

(1)  the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2)  their decisions were unreasonable and unfair under the Wednesbury test;

(3)  they failed to take into consideration that the right to life must be protected from extra-judicial killings which the applicant may face if deported to Guinea; and

(4)  the adjudicator failed to give the applicant sufficient time and opportunity to arrange relevant evidence in support of his non-refoulement claim as well as his appeal.  

The judge’s decision

8.  The applicant was absent from the hearing scheduled before DHCJ Bruno Chan on 20 September 2018.  The judge considered the application on the papers.  The judge considered that the applicant’s grounds are vague and broad without elaboration, particulars or specifics and lacking evidence in support. The judge held that there is no error of law or procedural unfairness in the decisions of the Director and the Board and they have not failed to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  Thus, the judge decided that there is no prospect of success in the applicant’s intended judicial review and dismissed the leave application on 11 January 2019.

Grounds of intended appeal

9.  The applicant did not state any particular grounds of appeal in his summons or affirmation.  He also failed to lodge any written submissions.

Analysis and disposition

10.  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.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 11 January 2019.  The applicant took out a summons at the court below on 3 July 2020.  He was late by more than 16 months, exclusive of the Court’s summer vacation in August 2019.  The delay is very substantial.

12.  The applicant explained in his affirmation that he was late in taking out the application as he lacks knowledge and resources. This explanation cannot justify the substantial delay in the present case. 

13.  As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  The applicant did not put forward any ground to reverse the judge’s decision.  He failed to demonstrate that he has any prospect of success in his intended appeal.  We exercise our discretion to refuse an extension of time to appeal against the judge’s decision of 11 January 2019 and dismiss the summons filed on 25 January 2021.