RE NTOUGLO KOMIVI

CAMP 242/2023, [2024] HKCA 263

On Appeal From [2022] HKCFI 813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 242 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 213 OF 2019)

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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.  On 28 June 2023, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 28 March 2022 ([2022] HKCFI 813) (“the Leave Decision”) refusing leave to apply for judicial review.  On 20 June 2023, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 1550) (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 4 January 2019, dismissing the appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 9 August 2016 and 8 August 2017 rejecting the applicant’s non‑refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Togo.  He entered Hong Kong as a visitor on 18 September 2012 but he did not depart when his limitation of stay expired.  He had overstayed.  On 3 October 2012, he was arrested by the police.  Two days later, he lodged a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed because he was a member of National Alliance for Change (“ANC”).  Details of the applicant’s claim have been summarised by the Judge at [4] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 9 August 2016 and a Notice of Further Decision dated 8 August 2017 (collectively referred to as “the Director’s Decisions”), the Director rejected the applicant’s non‑refoulement claim on all applicable grounds: risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decisions to the Board.  On 4 January 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decisions (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [13] ‑ [15] of the Leave Decision:

“13.  Having considered all the evidence and the parties’ submissions, the Board made the following findings in relation to the credibility of the applicant’s claim:

1.  The applicant had provided a reasonably detailed and consistent account of his past experience in Togo, which was also corroborated by some of the country of origin information (‘COI’) [145]-[148];

2.  However, several material aspects of the applicant’s claim were unsupported by any documentary evidence or failed to reconcile with the COI [149]-[152];

3.  The applicant’s membership with the ANC was also questionable, such as the date of his membership and the possibility that he might no longer be a member of ANC [153]-[154];

4.  The applicant’s accounts on the January 2012 visits from the military were also inconsistent and implausible.  His claim that the ANC members were tortured or killed also lacked evidence to support [155]-[156];

5.  The fact that he was not arrested by the relevant authorities of Togo when he was in and out of the country contradicted with his assertion that he was wanted by the government [157]-[160].

6.  All considered, the Board found that the applicant’s claim lacked credibility.

14.  The Board also rejected the applicant’s claimed risk of harm as a returnee or failed asylum seeker as it did not sit well with the relevant COI [167].  Further, there was no evidence suggesting that southerners were targeted or discriminated since they had relative dominance in commercial private sectors [168].

15.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.”

7.  On 23 January 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86 or the supporting affirmation.

THE JUDGE’S DECISION

8.  On 28 March 2022, as the applicant did not request an oral hearing, the Judge determined his application on paper and refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [18] ‑ [23] of the Leave Decision:

“18. 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 applicants’ 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).

19. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

20. 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.’

21. It is apparent that the Board had rejected his evidence on the facts of his claim. The applicant does not have any valid ground to challenge the Board’s Decision.

22. 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.

23. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

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 18 May 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was over one year and one month late with her intended appeal.

11.  On 20 June 2023, the Judge refused the applicant’s application, holding that the applicant had not been able to raise any valid ground to challenge the Board’s Decision or show any realistic prospect of success in his intended appeal.

THIS APPLICATION

12.  By a summons and a supporting affirmation taken out on 28 June 2023 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons and supporting affirmation, the applicant did not give any reason for his delay or any ground of review.

13.  Contrary to the directions of the Registrar of Civil Appeals dated 28 June 2023, the applicant failed to lodge any written submissions.

DISCUSSION

14.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

15.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

16.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

17.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

18.  At the outset, the applicant’s delay of over one year and one month is severely substantial and inordinate.  He failed to provide any reason, let alone good reason, for his delay.  He also failed to provide any intended ground of appeal or identify any error in the Leave Decision.  As such, his intended appeal is a non-starter and must fail.

19.  There is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

20.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 28 June 2023 is dismissed.