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CAMP 101/2023, [2026] HKCA 1232
On appeal from [2022] HKCFI 537
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 101 OF 2023
(ON AN INTENDED APPEAL FROM HCAL 1876/2018)
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| RE: |
Hassan Mussa Ally |
Applicant |
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| Before: |
Hon Barma JA and Lisa Wong J in Court |
| Date of Hearing: |
16 January 2024 |
| Date of Judgment: |
10 July 2026 |
___________________
J U D G M E N T
___________________
The Court:
1. This is an application for extension of time to appeal against the decision of DHCJ K.W. Lung (“the Judge”) dated 23 February 2022 (“the Leave Decision”) refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) given on 13 August 2018 (“Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) given on 23 September 2015 and 11 January 2017 (“Director’s Decisions”).
Background
2. The applicant is a national of Tanzania. He entered Hong Kong as a visitor on 20 April 2012, but he overstayed and was arrested by the police on 28 July 2012. On 30 July 2012, the applicant lodged a non-refoulement claim (“NRF Claim”).
3. The applicant’s claim was based on a fear of being harmed or killed by members of the opposition political party, Chama Cha Mapinduzi (“CCM”). The applicant claims that members of the CCM had burnt down his house and destroyed his shop and vehicles. The details of the applicant’s NRF Claim have been summarised by the Judge at [4] to [5] of his decision (“the CALL-1 Form”)[1].
4. By the Director’s Decisions, the Director decided against the applicant’s NRF Claim based on all applicable grounds, namely the torture risk[2], the persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].
5. The applicant appealed against the Director’s Decisions to the Board. The Board conducted a rehearing of the NRF Claim on 27 April 2017, where the applicant gave evidence and answered the Board’s questions.
6. By the Board’s Decision, the Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection. The Board concluded that the applicant’s evidence on the material parts of his claim was incredible, unreliable and conflicting (such as his claim that members of the CCM people continued to search for him at the location of his house, notwithstanding that they had allegedly already burnt it down). Moreover, the Board took the view that suitable options of internal relocation within Tanzania were in any event available to the applicant.
The Judge’s decision
7. The applicant filed a Form 86 on 10 September 2018 seeking to judicially review the Board’s Decision, without setting out any grounds. In his supporting affirmation filed on the same date, the applicant, without elaboration or providing particulars, merely stated that he was “not satisfied” with the Board’s Decision and that his life would not be “[safe]” should he be refouled.
8. After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL‑1 Form:
“12. 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).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. 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.’
15. The applicant has submitted no valid ground to assist his application.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.
CONCLUSION
18. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.”
The present application for extension of time to appeal
9. The applicant’s last known address at the time of the Judge’s Leave Decision was at No.63 Yeung Uk Road, Tsuen Wan (“the TW Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Leave Decision were sent by post to the applicant at the TW Address on 23 February 2022, which was not returned undelivered.
10. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Leave Decision.
11. The applicant thereafter took out a summons in the Court of First Instance on 24 May 2022 seeking extension of time to appeal, in which his address was stated to be at Kam Tin, Yuen Long (“the YL Address”). In the summons, he merely stated, without elaboration, that he wished to challenge “the decision”, and in his supporting affirmation filed on the same date, he simply acknowledged that he was “late to appeal”, but did not provide any explanation whatsoever for the delay.
12. By the Judge’s decision dated 27 June 2022[6], the applicant’s application for extension of time to appeal was dismissed.
13. By a summons filed on 10 March 2023, the applicant renewed his application before this Court for an extension of time to appeal. In the summons and in his supporting affirmation filed on the same date, the applicant stated that he “failed to appeal on time” because he “did not get judgment on time”.
14. In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions on or before 24 March 2023. The applicant is therefore debarred from lodging and relying upon any written submissions.
15. We note that while it appears that the applicant did not make a request for an oral hearing of the substantive leave application before the Judge, a hearing was nonetheless fixed for such determination on 20 February 2020. However, by a letter dated 10 January 2020 from the Judge’s clerk (sent to the applicant at the TW Address), the applicant was informed that the purpose of the February 2020 hearing was apparently, inter alia, for the Court to explain to him the “function of judicial review”, and that if he failed to attend the hearing at the scheduled time, the Court would proceed to determine his application on “the evidence available to it”.
16. By a further letter to the applicant on 10 March 2020, the applicant was informed by the Court that the February 2020 hearing was re-fixed to 29 April 2020 due to the pandemic. It later transpired that, for unknown reasons, the April 2020 hearing was vacated, and the Judge proceeded to determine the application on paper pursuant to O.53 r.3(3) of the Rules of the High Court (Cap. 4A).
17. We note that unlike the applicants in Re Hossain Anowar [2023] HKCA 1361 and in Re Pervin Jahanara [2023] HKCA 1064, the applicant in the present case did not appear to have made a request for an oral hearing. Thus, in the absence of such request, it cannot be said that there was any procedural irregularity in respect of the Judge’s determination of the applicant’s leave application on the papers (see O.53 r.3(3); c.f. Re Pervin Jahanara at [20]).
18. This notwithstanding, by reason of the unexplained cancellation of the April 2020 hearing before the Judge, in the interest of fairness, this Court directed that a rolled-up hearing be fixed for the purpose of enabling the applicant to make submissions in support of the present application, and submissions which he would have made to the Judge in the court below. The Board and the Director were excused from attendance at the hearing.
19. The applicant was absent at the hearing on 16 January 2024, and we have therefore proceeded to determine the present application based on the materials already lodged with the court.
Discussion
20. The present case is to be distinguished from cases where the applicant had made a request for an oral hearing of his or her application for leave to apply for judicial review and where such request was not honoured by the Court. The Judge in the present case was, under O.53 r.3(3),entitled to determine the application without an oral hearing in the absence of a request for the same.
21. In any event, the applicant in the present was afforded an opportunity to make submissions to this Court at the hearing on 16 January 2024. However, he did not avail himself of that opportunity, as he was absent at the hearing.
22. For the following reasons, we are of the view that the present application falls to be dismissed by reason that the intended appeal is wholly lacking in merits.
23. At the outset, we note that there was no cogent explanation provided by the applicant as to why he was late in lodging his intended appeal. As noted above, the CALL-1 Form was sent to the TW Address by post, which was not returned undelivered. The inference to be drawn is that the applicant has had knowledge of the Leave Decision within the period in which he was permitted to lodge an appeal.
24. It was also incumbent upon the applicant to notify this Court of the change of his correspondence address to the YL Address, and the consequences of failure to do so must fall on him alone. In the circumstances, there is clearly no reasonable explanation for the delay.
25. We have nonetheless proceeded to consider the merits of the intended appeal.
26. The applicant has failed to identify errors on the part of the Judge which would justify the intervention by this Court. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching the Board’s Decision, or how such Decision could be said to be Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
27. Further still, the applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters. We have also subjected the Board’s Decision and the Leave Decision to anxious scrutiny and have found no reasonable basis for intervention.
28. For these reasons, we do not see any prospect of success in the intended appeal. This court will not grant an extension of time for a hopeless appeal. The summons filed on 10 March 2023 is accordingly dismissed.
(Aarif Barma)
Justice of Appeal |
(Lisa Wong)
Judge of the Court of
First Instance |
The applicant, unrepresented, absent
[1] [2022] HKCFI 537
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2022] HKCFI 1756
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