RE SOUMAH OUSMANE

CAMP 71/2018

[2018] HKCA 459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 71 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 172/2017)

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J U D G M E N T

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

Introduction

1.  This is an application for an extension of time to appeal against the decision of DHCJ Bruno Chan on 20 March 2018 refusing leave to the applicant to apply for judicial review.  The applicant is a national of Guinea who arrived in Hong Kong on 2 February 2014.  He overstayed and surrendered to the Immigration Department on 27 February 2014.  On 27 March 2014, he raised a non-refoulement claim. 

2.  According to the applicant, he was not politically inclined and had never joined any political parties, but one afternoon in 2013 on his way home from football practice, he ran into a group of Peuhl people who demanded that he voted for their candidate as president, and when he insisted that he was not interested in politics they warned him to stay away from the presidential election and threatened to kill him with their long knives if he did not do as they said before letting him go.   

3.  When he returned home he did not report the threat to the police because even they were afraid of the Peuhl people but as he was terrified by the incident he decided to leave Guinea for his own safety, which he did on 16 July 2013 but on his way out of Guinea his taxi was stopped by a group ofPeuhl people and he was only allowed to leave after paying them some money.   

4.  By the Notice of Decision dated 1 March 2016, the Director of Immigration (“Director”) decided against the applicant’s claims. The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”). 

5.  On 11 March 2016, the applicant appealed to the Torture Claims Appeal Board (“the Board”). 

6.  By the Notice of Further Decision dated 29 December 2016, the Director also considered the BOR 2 risk and decided against the applicant in that respect.  

7.  On 2 February 2017, the Board held a hearing. The applicant appeared in person and was assisted by a French interpreter.  On 17 February 2017, the Board dismissed the appeal on all applicable grounds (including BOR 2 risk) (“Board Decision”). 

8.  The intended judicial review was in respect of the Board Decision only.  The Form 86 filed by the applicant on 5 May 2017 did not contain any grounds.  In the affirmation dated 5 May 2017, the applicant said that “I believe my hearing was not well interpreted as I mean it.  Immigration did not give me any lawyer to follow my case before and at the hearing.”

9.  After summarizing the background of the case and giving consideration to the decisions of the Director and the Board, the Judge gave the following reasons in refusing leave at [10] to [15] of the CALL-1 Form:

“ 10. On 5 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he set out what seems to me the grounds of inadequate or improper interpretation and lack of legal representation when he stated:

‘ I believe my hearing was not well interpreted as I meant it. Immigration did not give me any lawyer to follow my case before and at the hearing.’

11. For his intended challenge based on inadequate or improper interpretation, in the absence of any particulars or specifics provided by the applicant it is not possible to ascertain in what way or manner was his evidence or submission ‘not well interpreted’ at the hearing, but the Board clearly stated in paragraph 4 of its decision that when the applicant appeared in person on 2 February 2017, he was assisted by a French interpreter and that he did indicate that he had no difficulties with the quality of interpretation.

12. At any rate, whatever problems the applicant may now have with the interpretation at the hearing, it is clear to me that the Board reached its conclusion by accepting and proceeding on the basis that there was indeed an incident between him and the Peuhl people as described by the applicant, that there was an altercation in which he was stopped by them who asked him which sides of politics he supported, that he was threatened by them and as a result shaken by the incident which led to him leaving Guinea, and that it was on the basis of such findings and the available COI that the Board proceeded to consider and determine his appeal, hence in my judgment the intended challenge based on improper or inadequate interpretation has no relevancy or merit.

13. As for the intended challenge on lack of legal representationor assistance, the Court of Appeal in Re Zahid AbbasCACV 216/2017, [2018] HKCA 15has clearly stated that the right to legal representation is not absolute, as Lam VP stated in paragraph 11 of his judgment:

‘ As regards the challenge based on lack of legal representation, neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant or BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.’

14. In the present case the applicant did have the benefit of legal representation under the Duty Lawyer Service in presenting his case to the Director of Immigration, and had advanced his case fully with oral evidence before the Board, I am therefore unable to find anything amiss arising from lack of legal representation in his appeal before the Board.

15. In the premises and for these reasons, I do not see any merit in either of the grounds relied on by the applicant in his intended challenge, nor do I find any error in law or procedural unfairness in the decisions of either the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of his claim.  Accordingly, I am not satisfied that his intended application for judicial review is reasonably arguable, and I therefore refuse his leave application.”

10.  According to the court record, the Judge’s order was sealed on 20 March 2018.

Application for an extension of time to appeal

11.  Pursuant to Order 53, rule 3(4), the applicant had 14 days to lodgean appeal.  He failed to do so.  By a summons dated 24 May 2018, he applied for an extension of time to appeal.  His application was supported by an affirmation dated 24 May 2018.  In the affirmation, the applicant deposed that:

“ I have noticed that I have a decision letter of the court only on 18 May 2018.

Reason why my appeal application maybe out of date.  Decision of refusal of my leave to appeal for judicial review was only based on the conclusion of [the Board]”

12.  The applicant did not submit any draft Notice of Appeal.

13.  Because the applicant did not comply with the unless order made by the Registrar of Civil Appeals on 25 May 2018 and 25 June 2018, he was debarred from lodging any written submissions.

Discussion

14.  By reason of Order 59, rule 2A and rule 14A(1), this Court can determine an application for extension of time to appeal without an oral hearing.  The applicant had been notified of such possibility by the Registrar of Civil Appeals in the directions of 25 May 2018.

15.  The delay in the present case is a short one. Notwithstanding this, the arguability of the intended appeal is an important consideration in an application for extension of time, see Re MKHCMP 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. The crucial consideration in this application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review.  After reviewing the materials placed before the Judge, we agree with the Judge that the applicant’s claims are not reasonably arguable and the intended judicial review has no prospect of success. 

16.  The applicant’s grounds for applying for leave for judicial reviewappear to be (1) unsatisfactory interpretation at the Board hearing and (2) lack of legal representation at the Board hearing.

17.  We note from paragraph 4 of the Board Decision that the applicant appeared in person before the Board assisted by a French interpreter.  He indicated to the Board that he had no difficulties with the quality of interpretation.  In the JR leave application, the applicant did not give any details for any unsatisfactory aspect of the interpretation.  This ground has no merit.

18.  As for the lack of legal representation, this Court has repeatedly held that neither the high standard of fairness nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant or BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings.  The judge correctly applied this principle.  There is no merit in this ground.

19.  The applicant alleges that the judge’s decision to refuse JR leave was “only based on the conclusion of [the Board]”.  This argument is misconceived because the primary decision maker is the Board.  Though 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.  See: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. 

20.  The learned judge has carefully scrutinized the Board Decision.  He considered in detail the two grounds raised in the applicant’s affirmation dated 2 May 2017 at [10] – [15] of CALL-1 Form.  There is no merit in this ground.

21.  Like the Judge, we do not see any errors of law or proceedings in the proceedings before the Board.  Nor do we see any reasonable basis to challenge the fairness of the process.  For these reasons we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 24 May 2018 is dismissed accordingly.

22.  We are of the view that the application is totally without merit.  Pursuant to Order 59, rule 2A(8), we make an order that the applicant may not request this determination be reconsidered at an oral hearing.