RE BAH MAMADOU HABIB

CAMP 91/2019

[2019] HKCA 1409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 91 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1098 OF 2017)

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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):

A.     INTRODUCTION

1.  By a decision as set out in Form CALL‑1 dated 14 September 2018 (“the Judge’s Decision”) [2018] HKCFI 1752, Campbell-Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 20 October 2017 (“the Board’s Decision) and the decisions of the Director of Immigration (“the Director”) dated 8 April 2016 (“the Director’s First Decision”) and 18 May 2017 (“the Director’s Second Decision”).

2.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

3.  The applicant issued a summons on 11 October 2018 before the Judge seeking leave to appeal the Judge’s Decision out of time.  Pursuant to Order 53, rule 3(4) of the Rules of High Court (Cap 4A), the 14‑day period for him to lodge such appeal expired on 28 September 2018.  Thus, the application was 13 days out of time.  On 28 February 2019, the Judge refused his application to appeal out of time.

4.  The applicant now renews the application for extension of time to appeal to this Court by way of a summons dated 15 May 2019 (“the Summons”).  He was again late for around two months in filing the renewed application before this Court[1].

5.  Pursuant to the directions of the Registrar of Civil Appeal given on 15 May 2019, the applicant lodged his written submissions on 29 May 2019.  Having considered the applicant’s written submissions, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court.  We now hand down our judgment.

B.     BACKGROUND

6.  The applicant is a national of Guinea.  He first came to Hong Kong on 7 August 2014 as a visitor and was permitted to stay until 21 August 2014.  He overstayed and surrendered himself on 27 October 2014.  He lodged a non-refoulement claim on 24 November 2014.

7.  The details of the applicant’s claim and his personal background were set out in paragraph 5 of the Director’s First Decision, and paragraphs 26 - 54 of the Board’s Decision.

8.  Briefly stated, the applicant claimed that if he were to return to Guinea, he would be harmed or killed by his paternal aunt because she disliked him and accused him of stealing her gold.  The applicant claimed that his parents died in or about 2007 when he was 11 years old.  He was then adopted by his paternal uncle, Mamadou Cire Bah (“Cire”).  The Cire family often abused him physically and mentally and forced him to work as a labourer.  Whenever his aunt was dissatisfied with his work, she would slap him and deprive him of water and food.  For about seven years, the applicant had been beaten almost every two to three days.  Although he confirmed that there were no serious injuries, he felt terrified.  In around April 2014, his aunt accused him of stealing her gold and locked him inside the guest room for three days with only a mug of water.  He could not escape or ask for help.  His aunt also threatened to kill him if he did not return the gold within a week.

C.     THE DIRECTOR’S DECISIONS AND THE BOARD’S DECISION

9.  By the Director’s Decisions, the Director decided against the applicant.  The Director’s First Decision covered the BOR 3 risk[2], the persecution risk[3], and the torture risk[4]. The Director’s Second Decision assessed the BOR 2 risk[5].

10.  The applicant appealed the Director’s Decisions to the Board.  After the hearings on 4 May 2017 and 6 September 2017 respectively, the Board dismissed the appeal.  The Board found that the applicant was not a credible witness and his evidence was contradictory and fabricated for the purpose of his claim (paragraphs 55 - 87 of the Board’s Decision).  In any event, state protection and internal relocation were available to the applicant (paragraphs 88 - 91 of the Board’s Decision).  Thus, the Board rejected the applicant’s case in its entirety and found that he had not established his non‑refoulement protection claim under all applicable grounds.

D.     THE JUDGE’S DECISION

11.  On 18 December 2017, the applicant filed his Form 86 for leave to apply for judicial review against both the Director’s Decisions and the Board’s Decision.  The grounds of review were summarized by the Judge at paragraph 10 of the Judge’s Decision:

“10. There were no grounds of review save to say that the Applicant simply alleged there had been impropriety, Wednesbury unreasonableness, bias and prejudice, without more. He has not complained of any actual procedural irregularity, unfairness or unreasonableness and provided no examples of his complaint but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.”

12.  The applicant did not request a hearing.  After considering all the evidence, the Judge refused the applicant’s application. She set out her reasons at paragraphs 11 - 12 of the Judge’s Decision:

“11. Despite the fact that the Applicant did not submit any proper grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12. 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.”

E.     EXTENSION OF TIME IN THE COURT BELOW

13.  On 11 October 2018, the applicant took out a summons seeking leave to appeal against the Judge’s Decision out of time.  The leave application was heard by the Judge on 28 February 2019.  By the decision handed down on 28 February 2019 (“the Leave Decision”) [2019] HKCFI 571, the Judge refused to extend time for the applicant’s application.

14.  The Judge rejected the applicant’s explanation that he did not receive the order on time and did not look for it until reminded to do so by the Immigration Department.  She found that the applicant had been in Hong Kong since 2014 and had been dealing with various governmental authorities.  The applicant all along had no difficulty in receiving the necessary documents and notifications and thus the Judge refused to accept that the applicant did not receive the order in time.  In any event, the applicant failed to provide any intended grounds of appeal or put forward any particulars pointing out any errors or procedural unfairness in the Judge’s Decision.  In the absence of any reasonably arguable grounds, the Judge held that the application was totally without merit and dismissed his application.

F.     DISCUSSION

15.  In the Summons, the applicant stated the reasons for delay in applying for leave to appeal the Judge’s Decision out of time.  In gist, he claimed that he suffered knee injuries since last year when his doctor instructed him not to move too frequently and that as a result he was unable to check the letter box on time because he was living on 8/F of the building.

16.  In his written submissions, the applicant further elaborated the reasons for delay.  The applicant said that his knees were injured a few months ago and could not walk well.  He could only go to the hospitals for check-ups.  Further, he claimed that he did not receive the letter at his new address nor at his old address.

17.  As for the delay in making the renewed application to this Court, the applicant stated that he had a new address since December 2018 and he only updated the new address with the court on 18 March 2019 and he only received the letter on 14 May 2019.

18.  We do not accept the applicant’s explanation for the substantive delay of two months in making the renewed application.  The reason for his delay was his failure to inform the Court of his new address.  As repeatedly stated by this Court, it is the duty of a litigant to provide the Court with an up-dated address so that relevant notification can be given effectively and timely.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346.

19.  As held in Secretary for Justice v Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125, where the delay was both inordinate and inexcusable, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted.

20.  In the present application, neither the intended ground of appeal nor the written submissions contained any viable ground of appeal against the Judge’s Decision.  We agree with the Judge that the grounds set out in the affirmation in support of his application for leave to apply for judicial review against the Board and the Director lacked particulars and without any specifics.  They are hopelessly without merit.

21.  In any event, after our review of the materials placed before the Judge, we agree with the Judge’s Decision that the Board had achieved the high standards of fairness required and was entitled to render those findings, conclusions and decisions.  We do not see any errors of law or procedures in the proceedings before the Board and the Judge was clearly right to refuse to grant leave to apply for judicial review.

22.  For the reasons set out above, we are of the view that the application is totally devoid of merits and the intended appeal is doomed to fail.  Nor is there any other reason in the interest of justice why the appeal should be heard.  The Summons is dismissed accordingly.

23.  We further make an order pursuant to Order 59, rule 2A(8) of the Rules of the High Court, that no party may request this determination be reconsidered at an oral hearing inter partes.