RE BARROW ABASS

CAMP 220/2020

[2022] HKCA 374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 220 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1654 OF 2018)

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J U D G M E N T

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

1.  On 26 June 2020, Campbell-Moffat J (“the Judge”) refused to give the applicant leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 10 July 2020.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 8 September 2020 (late by 2 months) for extension of time to appeal.  That summons was dismissed by the Judge on 13 November 2020. 

3.  On 26 November 2020, the applicant filed his summons in CAMP 220/2020 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  In compliance with the directions made by the Registrar of Civil Appeals on 19 January 2021, the applicant filed his written submissions on 3 February 2021.

Background

5.  The brief background according to the applicant is as follows.  The applicant is a Gambian national.  His claim arises out of an inter‑familial dispute between himself and his half-brother Yusu (the son of his father’s first and primary wife) after their father died in 2013.  The applicant had quarrels and fights with Yusu over the estate, and the applicant thought that Yusu wanted to kill him.  Subsequently, the applicant fell ill, and he believed Yusu had hired a witch doctor to harm him.  He was advised by his witch doctor that the only way to avoid being killed by witchcraft was to leave Gambia. As a result, the applicant went to Senegal and lived with a friend for a year before arranging to come to Hong Kong via China.

6.  The applicant entered Hong Kong lawfully on 7 May 2014 as a visitor and was permitted to stay until 5 August 2014. He did not depart and overstayed.  He surrendered to the Immigration Department on 22 September 2014.  On 29 September 2014, he submitted a non-refoulement claim by way of written representation on the basis that if he were to return to Gambia, he would be harmed or even killed by Yusu because of the family dispute.

7.  By a Notice of Decision made by the Director of Immigration (“the Director”) dated 29 June 2017, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 22 March 2018 and by its decision dated 30 July 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [94] to [99], the Board rejected the applicant’s claim on the issue of credibility and held that the applicant had fabricated his story about witchcraft in an effort to establish a non-refoulement claim.  The Board did not attach any credence regarding his allegations that (a) Yusu had asked a witch doctor to practise witchcraft on him; (b) the applicant saw a demon and vomited; (c) consequently, he consulted a witch doctor who told him to leave Gambia to save his life; and (d) he did not leave Gambia for economic reasons.  The evidence suggested that the applicant’s encounters with Yusu only involved a fight with bare hands, and the applicant’s injury was minimal.  Further, the family dispute was private in nature, and there was no state involvement or acquiescence.  Reasonable state protection should be available and internal relocation is a viable option.  For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.  

Application for leave to start judicial review

9.  On 16 August 2018, the applicant filed a Form No. 86 together with his supporting affirmation to apply for leave to judicially review the Board’s decision but he did not provide any grounds for relief.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  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 leave to apply for judicial review for reasons and conclusions set out in [9] - [10] of the JR Decision:

“9.     Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully.  I have looked in particular inter alia, into the suggestion that the applicant believed he was the subject of witchcraft and the manner in which this allegation was assessed.  Having done so, I have not found any error of law or procedure on the part of the Adjudicator.  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 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 the determination, which was open on the facts and eminently reasonable.

10.     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.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal from the JR Decision.  He filed a summons in the Court of First Instance on 8 September 2020 for extension of time to appeal.  That was dismissed by the Judge on 13 November 2020.  Hence, the summons to this court. 

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).  As for (1) the applicant was late by 2 months between the JR Decision and the summons filed in the Court of First Instance.  His delay is substantial.   

13.  As for (2), the reasons for the delay, the applicant claimed that he did not receive any letter from the Court and he only learnt of the refusal of leave from the immigration officer. The court file indicated that the court letter was properly sent to the address given by the applicant, which was the same address he used for his extension of time application before the Judge.  We do not see any good reason for the substantial delay.

14.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  In his application for extension of time before the Judge, he did not raise any proper ground of appeal against the JR Decision, and the Judge found no realistic prospect of success in the intended appeal and thus refused leave.

15.  In his summons and supporting affirmation for the present application before this Court, he did not provide any ground to reverse the JR Decision.  In his written submission, he merely said that he could not return to Gambia because “someone want to kill [him]”.   

16.  The applicant has failed to provide any ground of appeal, or identify any specific errors in the JR Decision, or any other specific potential grounds for reversing the JR Decision. Further, the Board rejected the applicant’s case on the issue of credibility and it was open to the Board to reach its findings and conclusions, and the judge was right to find no error or procedural unfairness or irregularity in the Board’s decision.

17.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

18.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 26 November 2020.