RE SESAY HASSANA

CAMP 248/2020

[2021] HKCA 734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 248 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 543/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 19 July 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 21 March 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 7 December 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Guinea.  He entered Hong Kong on 15 June 2010 as a visitor and was permitted to remain until 29 June 2010.  He overstayed and was arrested on 2 August 2010.  He lodged a non-refoulement claim on 9 August 2010.

3.  The applicant’s claim was based on threats from the men who are believed to be responsible for his father’s murder in order to take over land owned by his father.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 7 December 2017 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 12 March 2018, the Board dismissed the appeal on 21 March 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [21] – [22] of the Board’s Decision, the Board held that there were a number of unanswered questions and that the Board is unable to give any weight to his case.  The Board was also satisfied at [23] that the applicant is unlikely to be identified or targeted upon his return.  Further, as the applicant confirmed that he would not lay claim to the land said to be linked to his father’s murder, the alleged threat to him is no longer extant.

The judge’s decision

7.  The applicant filed a Form 86 on 3 April 2018 which contained the following grounds for judicial review, as summarized by the judge at [10] of CALL-1 Form:

(1)  that the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim;

(2)  that their decisions were not fair or reasonable as required by the Wednesbury test;

(3)  that they failed to take into consideration that right to life must be protected from extra-judicial killings which the applicant may face if deported to Guinea; and

(4)  that the Board failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal. 

8.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [14] of the CALL-1 Form:

“11. These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to produce evidence for his claim or appeal. None of these were elaborated or presented with any particulars or specifics by the applicant, and even in his present application now before me, he did not seek to produce any further evidence for his claim. As such I do not find any basis or merits in any of these complaints of his, nor do I see any of them that can reasonably arguable for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

13. In the present case, having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

14. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

9.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 9 September 2019, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 17 December 2019.

10.  By a summons dated 21 December 2020, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“The Plaintiff would like to seek leave to appeal out of time due to the fact that he did not receive the sealed order, CALL-1 and Judgment within 14 days from 19 July 2019 due to the order being lost in post. The Plaintiff could only get the Order, Call-1 and Judgment after searching the court file.”

11.  In his skeleton submissions dated 3 February 2021, the applicant submitted that:

(1)  the Board failed to meet the high standard of fairness in that it had adopted a practice of not questioning the decisions of the Director, and had also failed to consider country of origin information; and

(2)  the Board failed to act fairly.

Discussion

12.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

13.  We are of the view that the applicant has failed to put forward any reasonable explanation for his delay in making his renewed application for leave to appeal out of time to the court.  Although the applicant stated in his affirmation of 21 December 2020 in support of his application of the same date that he did not receive the CALL-1 Form in the post and only found out about it by searching the court file.  The position is that he did in fact make an application to the court below for leave to appeal out of time on 9 September 2019, only 7 days late, and must therefore have obtained the CALL-1 Form not long after it was issued on 19 July 2021.  Moreover, he attended at the hearing of his application on 30 October 2019, and submitted proposed grounds of appeal as directed by the judge on 4 November 2019.  Although the notice of hearing for the 30 October 2019 hearing was returned through the post, he clearly must have known about the hearing date as he attended the hearing.  Following the handing down of reasons for dismissing his application (on the merits, and not because of lateness) on 17 December 2019, just over a year elapsed before he renewed his application to their court.  No explanation for the very substantial delay is discernible.  If his address had changed, it was his duty to keep the court informed of his current address, and the consequence of his failure to do so falls on his shoulders.

14.  But even of the delay were to be overlooked, it is quite clear that the proposed appeal is wholly without merit.

15.  No draft grounds of appeal were lodged with his application to this court.

16.  The only grounds set out in the written submission are broad and general propositions not tied into the circumstances of his case.  Moreover, they only complain of errors on the part of the Board, but do not identify any error on the part of the judge.  They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  Further, having examined the judge’s decision, we can see no error in it.

17.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 21 December 2020 is dismissed accordingly.

18.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.