RE CAMARA ABOUBACAR

CAMP 246/2022

[2023] HKCA 134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 246 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 574 OF 2019)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Campbell-Moffat J (“the Judge”) dated 15 March 2022[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation. Despite directions given by the Registrar of Civil Appeals, he has not lodged a written submission 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 papers filed in this application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Guinea aged 54.  He last arrived in Hong Kong on 3 October 1999 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 20 October 2009.  He later raised a torture claim which was taken as a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014.  The applicant’s claim is based on his fear of being harmed or killed by the Guinean government and army because he founded the organization called Movement Dadis Ne Doit pas Rester au pouvoir to revolt against the President of Guinea.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

5.  By a decision dated 8 May 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds.  By a notice pf appeal which was received by the Torture Claims Appeal Board (“the Board”) on 15 September 2015, the applicant sought to appeal against the Director’s decision.  By a decision dated 29 August 2016, the Board refused to allow the late filing of the notice of appeal.    

6.  By a further decision dated 10 February 2017, the Director assessed the applicant’s claim under the BOR 2 risk^[5] ground and decided against it.  On 28 April 2017, the applicant sought to file a notice of appeal to appeal the further decision of the Director.  By its decision dated 15 February 2019, the Board refused to allow the late filing of the notice of appeal.    

7.  On 28 February 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s second decision of 15 February 2019.  The applicant had not put forward any specific grounds for seeking relief. 

8.  The Judge considered the application on paper and refused to give leave to apply for judicial review for the reasons set out in [13] to [16] of the Form CALL-1 dated 15 March 2022 (footnote omitted):

“Leave to apply for judicial review

13. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. Or, as in this case, implement the strict procedural requirements of the process. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the Decision of the Adjudicator, it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application, which was out of time.

Grounds of review

14. There were no grounds of review. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

15. Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers carefully as the delay in both of his appeals resulted in no re-hearing of the underlying claim. Be that as it may, the applicant was late twice. He provided no proper explanation for his delay and there was nothing within the papers before the Adjudicator upon which he could exercise his discretion. This claim is brought by the applicant. The onus is upon him to indicate on what basis he seeks to persuade the court. It is not for the Court to make his case for him. I have not found any error of law or procedure. There can be no criticism of the determination of the Adjudicator, which was open to him on the papers.

16.  In my judgement, 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 leave.  I therefore refuse leave for judicial review.”

9.  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 decision within 14 days after it was made.  The time for the applicant to appeal the Judge’s decision expired on 29 March 2022. 

10.  By a summons filed on 14 April 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at an oral hearing held on 16 June 2022.  By a decision of the same day she dismissed the application.[6] 

11.  On 13 July 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

12.  In considering whether to extend time for appealing against the refusal of 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. 

13.  The applicant was more than two weeks late, which is not an insignificant delay.  No explanation for the delay was given in either the present summons or supporting affirmation.  Before the Judge, the applicant claimed that he attended the court registry after receiving the Form CALL-1, but was told no assistance could be given to him on the appeal procedure.  The Judge accepted that during the time COVID-19 could have caused some litigants considerable difficulty and the applicant might have problems with navigating the court registry.  Like the Judge, we are prepared to accept that the applicant might have genuine difficulty in dealing with the appeal procedure and will focus on the merits of the applicant’s intended appeal, which is the most important consideration.    

14.  In assessing the merits of the intended appeal, we 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].

15.  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.

16.  The applicant did not provide any ground in support of his intended appeal in either the summons or the affirmation.  He merely stated that he did not agree with the two court decisions and asked for an extension of time to appeal.  He has therefore not shown any proper basis for this Court to interfere with the Judge’s decision.       

17.  We have separately considered the Board’s decision.  The applicant’s notice of appeal dated 28 April 2017 was late by about two months[7].  Under section 37ZT(2) of the Immigration Ordinance, Cap. 115, the Board is required to decide, as a preliminary decision without a hearing, whether to allow the late filing of the notice of appeal, and in doing so, may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons.  Section 37ZT(3) further provides that the Board may allow the late filing of the notice of appeal if the applicant provides sufficient evidence in writing to satisfy the Board that he (a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but (b) failed to file the notice within the period because of circumstances beyond the person’s control. 

18.  Moreover, under section 37ZT(2), in considering whether to allow the late filing of notice of appeal, the Board is required to also consider the merits of an applicant’s intended appeal against the Director’s decision: Re Qasim Ali [2019] HKCA 430.  In the present case, the Board noted that the applicant’s notice of appeal only stated (in French) that he had forgotten and asked to be forgiven; and there was no document filed in support of the intended appeal.   

19.  At [12] of the Form CALL-1, the Judge pointed out that (footnote omitted):

“Whilst the Adjudicator focused upon the reasons for delay on both occasions, it is clear that he had studied all of the papers available to him to find some support or connection to the explanation of the applicant on the first occasion in which he was late. On the second occasion, and the occasion against which the applicant now seeks a judicial review, there was nothing at all from which the Adjudicator could derive any cogent reason for delay.”

20.  While the Judge did not expressly state so, we agree with the Judge that it is plain from the content of the notice of appeal that the intended appeal against the Director had no merits.             

21.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for 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.  Accordingly, we dismiss the applicant’s summons filed on 13 July 2022. 

[1] [2021] HKCFI 705

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[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] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6] [2022] HKCFI 1841

[7] Section 37ZS(1) of the Immigration Ordinance provides that the notice of appeal must be filed within 14 days after the decision of the Director is given to the applicant.