RE SAIDY DUTA

CAMP 221/2020

[2021] HKCA 1024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 221 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 360 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 7 August 2020, Campbell-Moffat J (“the Judge”)  refused to grant the applicant an extension of time to apply for leave for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 13 October 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”)  dated 24 August 2016 and 30 June 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant lodged a summons on 2 September 2020 seeking an extension of time to appeal against the Decision.  By the decision dated 13 November 2020 (the Main Decision), the Judge, having considered the length of delay, reason for the delay and underlying merits of his application, dismissed the applicant’s summons on the basis that it would not be in the interest of justice to grant an extension of time in this case.

3.  By a summons dated 27 November 2020, the applicant applied to this Court for an extension of time to appeal the Main Decision.  Pursuant to the directions of the Registrar of Civil Appeals given on 19 January 2021, the applicant lodged his written submission on 28 January 2021. 

4.  Under Order 59, rule 14A(1)  of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The Applicant is a national of Gambia who arrived in Hong Kong on 5 May 2014 as a visitor and was permitted to stay until 3 August 2014.  He overstayed and was arrested by the police on 27 August 2014.  He was then referred to the Immigration Department for investigation.  On 29 August 2014, he raised a non-refoulement claim on the basis that if he were to return to Gambia, he would be harmed or killed by Ali Danjo (“AD”)  and his associates over a land dispute.  The factual background of this case was succinctly set out by the Judge at [4] of the Form CALL-1.[1]

6.  By the Notice of Decision and Notice of Further Decision dated 24 August 2016 and 30 June 2017, the Director decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].

7.  The applicant appealed the Director’s decisions to the Board and the appeal was heard for 21 September 2017.  By its decision dated 13 October 2017, the Board dismissed the appeal and confirmed the Director’s decisions.  For the reasons and analysis stated in [37] to [74] of the its decision, the Bound found that on the applicant’s account, the four alleged incidents only involved oral threats / threats of using black magic by AD and his associates to harm the applicant’s father and uncle and none of the incidents involved the applicant.  Further, the Board did not find the applicant’s story that AD wanted to kill him in order to take his family lands credible as it was contrary to relevant COI in Gambia that killing of the land owner / heir of the land owner would not confer title of land to an unrelated party.  Moreover, the applicant only escaped to Hong Kong more than one year after his father’s death (which the applicant suspected was due to black magic performed by AD on his father)  which was inconsistent with his alleged fear.  In any event, internal relocation is a reasonable option.  For the aforesaid reasons, the applicant’s non-refoulement claim failed on all applicable grounds.

The Judge’s decision

8.  On 6 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Director’s decision.  He did not provide any grounds of his intended challenge in his Form 86 nor his supporting affirmation.  

9.  The applicant was late in filing his application.  In accordance with Order 53, rule 3 of the Rules of the High Court, an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose and it expired on 13 January 2018.

10.  Further, as held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is not susceptible to judicial review once an appeal to the Board had been and dealt with.  Thus, the Judge had rightly treated the application as application for leave to judicially review the Board’s decision.

11.  On 7 August 2020, the Judge gave her decision refusing to grant an extension of time for the applicant to apply for leave for judicial review.  After summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [7] – [10] for her refusal to grant leave:

“7. In this case, the applicant was late by 52 days and has not offered any explanation for this delay. In view of the absence of good reason (or indeed any reason)  for the delay in filing his Form 86, he must satisfy the court that there is a reasonable prospect of success in his intended leave application and that there will be no prejudice to the putative respondent or administration of justice if an extension of time were to be granted. As to the latter, there is no suggestion there would be any such prejudice, save that it is in the interest of justice for matters subject to judicial review to be dealt with expeditiously. This application therefore turns upon the likelihood of success of his application for judicial review.

8. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with. It can therefore only be an application to apply for leave to judicially review the Decision of the Adjudicator. The applicant must therefore show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain an extension of time to seek leave to judicially review that Decision.

9. All of the papers considered by the Director, were before the Adjudicator. He arranged for an oral hearing and went to some lengths to consider the various allegations made including the applicant’s belief in black magic but noted that no harm had actually ever been visited upon the applicant himself and he had availed himself of local community authorities, even if he had not gone to the police. The applicant’s case was weak and failed independently of the Adjudicator’s view of his credibility, but he noted that the applicant had not raised a claim when he first came to Hong Kong and that there had been only four incidents over an 18-year period in which the applicant had remained in his home and apparently at risk but no harm had come to him. There was also a degree of illogicality to the motive of AD and his actions, which did not bear further inspection.

10.  In the absence of any reason for the delay and any grounds of review, the court is left with the bare facts as relied upon by the applicant and the application of the law to those facts by the Adjudicator, along with the explanation given by him within the Decision. Having analysed that Decision, the applicant’s NRF claim is extremely weak and was rejected on that basis after due process.  There is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted an extension of time to apply for leave to judicially review that Decision.”

12.  The applicant did not lodge any appeal in respect of the Judge’s decision within the 14-day time limit for appealing (which expired on 21 August 2020).  By the summons filed on 2 September 2020, he sought an extension of time for him to appeal against the Judge’s decision. 

13.  By her decision dated 13 November 2020, the Judge refused to grant an extension of time for the applicant to appeal her decision of 7 August 2020.  On the issue of delay, the applicant accepted that he was late and suggested that there was “lack of knowledge and insufficient fund”.  On the other hand, the Court file showed that the court letter was returned by the Post Office due to wrong address.  Although the applicant insisted the Immigration Department or the Court should keep him informed of the result of his application, the Judge rightly held that it was the duty of the applicant to update the Court with an address to which correspondence or notice can come to his attention in a timely manner, otherwise he should bear the consequences of delay.  More importantly, the Judge found no merit in the underlying application as the applicant did not provide any grounds of appeal and merely asked the Court of Appeal to consider his case afresh.  As such, the Judge found no prospect of success in the applicant’s intended appeal and therefore refused his application for an extension of time to appeal, and dismissed his summons.

The renew application

14.  By the summons dated 27 November 2020, the applicant renewed the matter before us.  He did not provide any draft or proposed grounds of appeal save for saying that he was late “due to lack of knowledge and insufficient sources” and urged this Court to accept his late application and allow him to proceed with his case.

15.  In his written submissions, he advanced the following grounds:

(1)  Many aspects of his case were ignored and all the decisions were not transparent.  The actual situation of his country is different from what the decision-makers might think of.

(2)  It is dangerous for him to return to his home country as his enemies are waiting for him.

(3)  The police and law authorities are corrupt and assistance would only render to those who are powerful and rich.

(4)  He urged the court to help him to stay in Hong Kong until his problem is solved.

16.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

17.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

18.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1)  of the Rules of the High Court (Cap. 4A). 

Discussion

19.  We agree with the Judge that the applicant had failed to provide any good reason to explain his delay of almost 2 weeks in filing his application for leave to apply for judicial review.  Ignorance of the law was no excuse.  In the circumstances, the applicant must satisfy this Court that there is a real prospect of success before an extension of time will be granted, see: Re Ansar Muhammad [2018] HKCA 227.

20.  Turning to the issue of merit, the applicant failed to raise any discernible grounds or pinpoint any error of law for this Court to reverse the Judge’s decision and his intended appeal is bound to fail. 

21.  We have carefully reviewed the Board’s decision and it was open for the Board to reach an adverse finding on credibility on the applicant’s case and even on his own account of event, he had not been inflicted any harm or sustained any injury over the incidents in Gambia.  The Judge is plainly right to conclude that there is no realistic prospect of success if he were granted an extension of time to apply for judicial review.

22.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 27 November 2020 is dismissed accordingly.