RE SILLAH HAJI

HCAL 1760/2018

[2021] HKCFI 371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1760 OF 2018

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D E C I S I O N

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1.  The applicant is a Gambian[1]. He came to Hong Kong on 29/5/2014. He surrendered to the Department of Immigration for overstaying on 28/8/2014. He filed the non-refoulement claim in this case on 26/9/2014.

2.  The non-refoulement claim was dismissed by the Director on 23/6/2017.

3.  The applicant appealed to the TCAB.  A hearing was fixed on 28/3/2018.  The notice of hearing was sent to the address supplied by the applicant.  He failed to attend. He did not furnish any reason as requested[2]. The TCAB tried to contact him on the phone but unsuccessful.  The adjudicator dealt with the appeal in his absence[3]. The TCAB dismissed his appeal on 12/7/2018.

4.  On 28/8/2018, the applicant applied for leave for judicial review.  He disagreed with the Director and the TCAB.  He did not point out any error in the decisions.

5.  Deputy Judge Lung fixed a hearing on 22/1/2020.  The applicant did not attend. Deputy Judge Lung refused leave for judicial review on 7/7/2020.  The judge held that the applicant had no factual basis in support of his application.  The judge did not point out any error in the decision of the TCAB.  There was no reasonable prospect of success. 

6.  The applicant filed a summons on 3/11/2020 for extension of time to appeal against the decision of Deputy Judge Lung[4]. He was about 3½ months out of time.  In his affirmation, he indicated that he had not received the decision from the court.

7.  According to the court file, the decision was sent to the latest known address of the applicant on 8/7/2020.  It was sent to the updated address (“KT”) according to the Immigration Department[5]. The mail was returned on 28/8/2020.

8.  According to the summons for the application for extension of time to appeal, the applicant gave a different address (“TKW”)[6]. He had not informed this court of the change.

9.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this 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[7].

10.  The applicant was out of time for about 3½ months[8]. He claimed in his affirmation that he did not receive the decision of Deputy Judge Lung.  According to the court record, that decision had already been sent to the applicant on 7/7/2020.  However, it was returned on 28/8/2020. The reason marked on the envelope by the post office was ‘refused’.

11.  According to the court record, the applicant gave address “TKW” as the correspondence address in the Form 86 dated 28/8/2018.  He was minded to inform this court in writing on 10/10/2018 that he changed his address to a place at Yuen Long (“YL”).

12.  On 16/12/2019, this court sent a notice of hearing to address “YL”.  The mail was returned on 13/1/2020.  It was marked on the envelope— ‘No such person’.  This court could not contact the applicant by phone[9].

13.  This court seek assistance from the Immigration Department for the updated address.  It transpired that the applicant had moved to address “KT”.

14.  The decision of Deputy Judge Lung was sent to address “KT”. It was returned on 28/8/2020.  It was marked on the envelope by the Post Office as “refused”.

15.  It transpired that the applicant had changed his address back to address “TKW” according to the summons dated 3/11/2020.

16.  The applicant had changed his address three times since he filed the Form 86.  He was only minded to inform this court about the change on 10/10/2018.  He did not update his address after that.  It is the duty of the applicant to update his address with the Director and the TCAB under s 37ZA (2) of the Immigration Ordinance.  Even if he had changed his address, he should have arranged a method for the mail to be diverted to him.  In my view, this duty applies equally to the communication with the court.  In case of any failure in communication, he must bear the consequence.

17.  In any event, the paramount importance in this application remains the merit of the intended judicial review[10].

18.  According to the evidence filed, the applicant was afraid that he might be harmed or killed by the former president if he returned to Gambia.  In 2012, the applicant received an order to produce 60,000 T-shirts at USD $30,000 for the former president.  The order was placed by the cousin of the former president.  The goods were delivered but it was not paid for.  The applicant filed a claim against the former president for payment in October 2013.  He was subsequently imprisoned and tortured by unknown officials unlawfully for about a month.  They warned him not to pursue the money from the former president.  There was another attack later by the “Black Boys” from the military. He managed to escape.  He left Gambia to China and Thailand for treatment before coming to Hong Kong[11].

19.  The Director found that had the former president and the associates intended to kill him, they had plenty of chance.  The injuries he sustained was not severe.  He was not targeted and was able to leave Gambia freely.  If the former president was so powerful as he claimed, it was unreasonable that he dared to take the former president to court.  Since early 2017, the former president had stepped down and exiled.  The dispute should have subsided.  The COI showed that there was reasonable State protection and relocation opportunities.  The Director rejected all claims under BOR 2, BOR 3, persecution risk and torture risk.

20.  The applicant was absent from the TCAB hearing.  The adjudicator considered the appeal on paper as there was no explanation[12]. She found that the applicant’s account was exaggerated, contradictory to the COI and inherently implausible.  She set out the doubtful points in detail in the decision. The gist is as follows[13]:

a. According to the applicant, the former president could do whatever he liked.  He had arrested and killed people arbitrarily.  It was incredible that the applicant dared to commence court proceedings against the former president.

b. The applicant claimed to have been detained and tortured by soldiers for about a month.  He only needed painkillers and ointment after released.  However, in the screening interview, he was inconsistent saying that he was hospitalized for 3 days.

c. When attacked by the “Black Boys”, he was able to escape on foot.  It was incredible as the “Black Boys” were armed with lethal weapons and on cars.

d. The former president had stepped down in early 2017.  He was exiled.  The applicant should not be at risk anymore.

e. In the notice of appeal, the applicant mentioned that he was in debt to his uncle who threatened to kill him.  This debt was never mentioned before.  There was no detail whatsoever. 

21.  Given the above and in the absence of explanation, the adjudicator rejected applicant’s factual basis of the claims.  She rejected the appeal.

22.  I agree with the decision of Deputy Judge Lung.  There is no merit in the intended judicial review.  In the circumstances, I dismiss his application for extension of time to appeal.