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CAMP 599/2021
[2022] HKCA 1388
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 599 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO 1707 OF 2018)
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| RE: |
ELSHERBINI IHAB TALAAT YOUSSEF |
Applicant |
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Before: Hon Cheung and Au JJA in Court
Date of Judgment: 23 September 2022
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J U D G M E N T
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Hon Au JA (giving the Judgment of the Court):
1. By a summons dated 30 December 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 26 July 2021. By that order the Deputy Judge refused the applicant’s application for extension of time to appeal ([2021] HKCFI 1872) (“the EOT Decision”) against his earlier order dated 10 June 2020, refusing the applicant’s application for leave to apply for judicial review ([2020] HKCFI 1110) (“the Leave Decision”).
2. The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 1 June 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 July 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).
3. Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).
Background
4. The applicant is a national of Egypt. He first arrived in Hong Kong on 3 November 2016 and was permitted to stay as a visitor until 1 February 2017. He did not depart as required and had overstayed in Hong Kong since 2 February 2017. On 6 March 2017, he raised a non-refoulement claim on the basis that he would be ill-treated by the Egyptian authorities and be killed by the Muslims if he returned to Egypt. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [6] of the Leave Decision.
5. By a Notice of Decision dated 28 July 2017, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].
6. The applicant then appealed against the Director’s Decision to the Board. On 22 March 2018, the Board heard the applicant’s appeal against the Director’s Decision. The Board dismissed his appeal on 1 June 2018. Having assessed the evidence, while accepting that the applicant held views that may be controversial in Egypt, the Board did not accept his claim to have been subjected to arrest, detention, beatings or torture by the police for those views. The Board also found the applicant’s claim of fearing the Islamic fundamentalists to be unfounded as he only made vague and generalised assertions on this matter. The Board considered that the applicant failed to substantiate his case on all applicable grounds and accordingly, dismissed his appeal.
The Leave Decision
7. On 22 August 2018, the applicant filed a Form 86[5] with a supporting affidavit applying for leave to apply for judicial review against the Board’s Decision. He did not put forward any ground of challenge and only stated in his supporting affidavit that the Immigration Department disregarded his dangerous situation. As the applicant failed to attend the scheduled hearing on 20 December 2019 before the Deputy Judge, his application was considered and determined by the Deputy Judge on paper.
8. By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review. His reasons were set out in detail at [14] - [17] of the Leave Decision:
“14. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.
15. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.
16. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.
CONCLUSION
17. I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.”
The EOT Decision
9. Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.
10. On 2 July 2020, the applicant filed a summons (“the EOT Summons”) for extension of time to appeal against the Leave Decision. By then, he was eight days late with his intended appeal. In his summons, he asserted that he did not receive the Leave Decision and that he did not have money to pay for his application. He further claimed that the Board and the Deputy Judge had disregarded his dangerous situation in Egypt.
11. By the EOT Decision, the Deputy Judge was not satisfied that the applicant had provided a good reason for his delay or any valid ground of appeal. The Deputy Judge noted that the applicant failed to point out in what way the Board had erred in its decision and was unable to show that he had any reasonable chance of success in his intended appeal. Accordingly, the Deputy Judge dismissed his application for extension of time to appeal against the Leave Decision.
The Present Application
12. By a summons and supporting affidavit both filed on 30 December 2021, the applicant applied for leave to appeal against the EOT Decision. In his summons, he contended that people would kill him as he converted from Islam to Christianity. In his supporting affidavit, he also claimed that he would be exposed to all kinds of persecution including imprisonment, torture and death and that his body still had some traces of the wounds of his enemies’ torture. He further asserted that a Muslim did not have the right to choose and could not change his religion. He further claimed that he would be baptised soon and attached a letter from Island Evangelical Community Church dated 27 December 2021[6].
13. Contrary to the directions given by the Registrar of Civil Appeal dated 30 December 2021, the applicant failed to lodge any written submissions in support of his present application.
Discussion
14. Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.
15. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].
16. The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].
17. Although a delay of eight days in taking out his application is not substantial, in our view, his application is wholly devoid of merit. At the outset, none of the matters raised by the applicant in the summons and supporting affidavit identify any error in the Leave Decision and are not proper grounds of appeal. His intended appeal must fail on this basis alone.
18. Further and in any event, there is no substance in the applicant’s complaints. General and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. As repeatedly emphasised by the Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: 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].
19. For the above reasons, the intended appeal has no prospect of success. It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 30 December 2021 is dismissed.
| (Peter Cheung) |
(Thomas Au) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] 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.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the 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.
[5] The Form 86 was dated 20 August 2018.
[6] For completeness, this letter was produced for the first time in the present application and was not before the Board or the Deputy Judge. As the applicant failed to demonstrate how this new evidence was relevant to his intended appeal or in any event, how it satisfied the Ladd v Marshall [1954] 1 WLR 1489 principles or the requirements for admitting new evidence under Order 59, rule 10(2) of the RHC, we see no basis to admit this letter as new evidence for the purpose of the present application.
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