RE CEESAY EBRIMA

CAMP 422/2021

[2022] HKCA 782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 422 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2667 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 9 July 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 9 October 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 30 May 2018 rejecting the applicant’s non-refoulement claim.

2.  On 27 September 2021, the Judge refused to extend the time for the applicant to appeal against his decision of 9 July 2021.[2]

Background

3.  The applicant is a Gambian national. Between 2012 and 2014 he had travelled into an out of Hong Kong on four occasions. He last arrived in Hong Kong on 6 July 2015 and was permitted to remain as a visitor until 20 July 2015. He did not depart upon the expiry of that permission and overstayed, but he surrendered himself to the Immigration Department on 13 October 2017, and raised his non-refoulement claim on 16 January 2018.

4.  The applicant’s claim was based on the fear that, if he returned to the Gambia, he would be harmed or even killed by his Muslim father or by Muslim militants that his father demanded that he join, due to the applicant’s conversion to Christianity.

5.  By notice of decision dated 30 May 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6]

6.  The applicant appealed to the Board against that decision. An oral hearing was held on 29 August 2018, during which the applicant answered questions from the Board.

7.  The Board noted that the applicant said in 2004/5 his father pressured him to join a Muslim militant group but the applicant had never been physically attacked or harmed by either his father in the years from 2004 to 2012. All he received were verbal threats from him. The applicant had never been threatened by any person from the Muslim militants. The applicant had had no contact with his father since leaving Gambia in 2012, and admitted that his father would not know if the applicant returned to Gambia. The Board found that there was no real risk of harm to the applicant in the event of refoulement. The Board also considered that reasonable state protection was available and internal relocation was viable. Accordingly, in its decision dated 9 October 2018 the Board dismissed the applicant’s appeal in relation to all the applicable grounds.

The Judge’s decisions in the court below

8.  On 23 November 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his supporting affidavit the applicant requested an oral hearing, but did not raise any specific grounds for judicial review.

9.  Eventually a hearing was fixed for 24 May 2021. A hearing notice dated 28 April 2021 was posted to the following address:

“ Flat B, 4/F, BLK A(Block A),

ChungKing Mansion,

Tsim Sha Tsui”

10.  This was based on the applicant’s address stated on his Form 86 filed 23 November 2018, which was:

“ Flat B, 4/F, BLK A, Chungking Mansion, TST”

11.  The hearing notice was subsequently returned to the court undelivered, marked “incomplete address” or “no such address”. Although the court staff added “(Block A)” and spelt out “Tsim Sha Tsui” in the address used, we do not think this made any material change. We note that in the Non-refoulement Claim Form at Question 75 the applicant had given the address of “Flat B, Blk 4, Chung King Mansion, TST”, which is different from that in his Form 86. The failure of the notice to reach the applicant was plainly due to the defects in the address provided by the applicant.

12.  The applicant did not appear at the hearing on 24 May 2021. The Judge proceeded to decide the application upon consideration of the documents only. On 9 July 2021 the Judge issued his decision refusing to grant leave to apply for judicial review. His reasons were set out at [13] – [16] of the Form CALL-1 as follows:

“ 13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13.… …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.’

14. His ground in support of this application does not assist his application.

15. 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.

16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

13.  The Form CALL-1 and the sealed order of 9 July 2021 refusing leave for judicial review were sent on 9 July 2021 by post to the same address as before, and were again returned undelivered on 25 August 2021 marked “incomplete address / no such address”.

14.  On 25 August 2021, the applicant took out a summons to seek an extension of time to appeal against the Judge’s decision. In his supporting affirmation of the same date, the Applicant stated that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his country, and that he did not receive any correspondence from the court regarding the refusal of his judicial review application. The address given by the applicant in the summons and affirmation was Tung Tau Correctional Institution, 70 Tung Tau Wan Road, Stanley. The applicant was serving a prison sentence there at the time.

15.  The Judge determined the application for extension of time on the papers without an oral hearing. On 27 September 2021 he issued his decision refusing to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal, and dismissed the summons.

Application to this Court for extension of time

16.  Having been released from custody, on 4 October 2021, the applicant filed a summons in the Court of Appeal seeking an extension of time to appeal against the Judge’s refusal of leave for judicial review. In his supporting affirmation of the same date, the applicant stated that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in this country and that he had not received the decision on time.

17.  In the written submissions lodged by the applicant on 18 October 2021, he simply set out various passages from decided cases and the provisions of section 37ZT of the Immigration Ordinance (which concerns the late filing of a notice of appeal with the Board) without explaining in what way they are applicable or relevant to his case.

18.  Pursuant to Order 59 rule 14A of the Rules of the High Court (Cap 4A), we consider it appropriate to deal with the present application on paper without an oral hearing.

Discussion

19.  By Order 53 rule 3(4) of the Rules of the High Court, the time limit for the applicant to appeal against the refusal of leave for judicial review is 14 days.

20.  It has been repeatedly emphasized by the courts that it is the duty of a litigant/claimant to provide the Court with an up-to-date address to which correspondence or notice can come to his attention in a timely manner, and that the consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant: see e.g. Re Salina Thapamagar [2021] HKCA 1807, §20.

21.  However, as the applicant made an application for extension of time on 25 August 2021 and time does not run in August (section 31 of the High Court Ordinance (Cap 4)), he was technically only 9 days late in taking steps to appeal. In the circumstances, we have proceeded to consider the merits of the intended appeal.

22.  In rejecting his appeal, the Board carefully assessed the applicant’s claim and concluded that there was no real risk of harm on his return to his country. As the applicant admitted to the Board, his father would not know if he returned. Further, internal relocation was a viable option. Judicial review is not a further avenue of appeal on the merits. To obtain relief in judicial review, it is necessary for the applicant to satisfy the court that the Board’s decision can be impugned on public law grounds, such as error of law, procedural unfairness, or irrationality. The applicant has wholly failed to show any such basis for judicial review; nor could the Judge or this court see any possible ground. In these circumstances, it seems to us that the intended judicial review has no realistic prospects of success.

23.  Although the notice of the hearing before the Judge did not reach the applicant, that again was due to his own fault in supplying a defective address. Further, the applicant has wholly failed to show what clarification or elaboration he could have made if he had attended the hearing. His written submissions to this court were formulaic and failed to engage with the circumstances of his case. He has not been able to point to any substantive error in the Judge’s decision refusing leave for judicial review.

24.  For all these reasons, there is in our view no prospect of success in the intended appeal. The application for extension of time is therefore dismissed.