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CAMP 168/2022
[2022] HKCA 1300
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 168 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 2579 OF 2018)
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BETWEEN
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KAMBAY LAMIN |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party |
________________________
| Before: |
Hon Au and Chow JJA in Court |
| Date of Judgment: |
6 September 2022 |
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 26 May 2022, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 29 July 2020 refusing to grant him leave to apply for judicial review (“the Order”).
2. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 13 November 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 July 2018.
3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
4. The Applicant is a national of Gambia. He came to Hong Kong as a visitor on 31 October 2014, and was allowed to stay until 29 January 2015. He overstayed and lodged a non-refoulement claim on 4 February 2015, alleging that, if refouled, he would be harmed or killed by the United Democratic Party (“UDP”) in his home country. Details of the Applicant’s claim have been summarised by the Judge at §§1-6 of the CALL-1 Form ([2020] HKCFI 1740).
5. By a Notice of Decision dated 25 July 2018, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
6. The Applicant appealed the Director’s decision to the Board. On 13 November 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).
7. The Board’s reasons for its decision were summarised by the Judge at §11 of the CALL-1 Form, as follows:
“a. There was no evidence that his family was murdered by UDP people. The evidence was hearsay evidence.
b. There was no evidence why his family was killed.
c. Evidence showed that he was able to leave his country without difficulty. It was doubtful that UDP, the ruling party, was behind the murder of his family.
d. The applicant was not tortured within the context of section 37U of the Ordinance before he left Gambia.
e. He did not report the matter to police. However, the Country of Origin Information showed that state protection would be available to him.
f. Internal relocation was an option open to him.”
THE JUDGE’S DECISION
8. On 16 November 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
9. On 29 July 2020, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“16. It is obvious that the applicant failed to establish the facts in support of his claim before the Board. Since the Board did not found his case proved by evidence, he had no factual basis in support of his claim.
17. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.
18. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”
10. On 29 June 2021, Deputy High Court Judge P Li refused the Applicant’s application by summons dated 27 October 2020 for an extension of time to appeal against the Order (see [2021] HKCFI 1774).
THIS APPLICATION
11. By a summons taken out on 26 May 2022, the Applicant applied for “leave to appeal” out of time against the Order. No ground of appeal was given in the summons. In his supporting affirmation of the same date, the Applicant stated that:
“… I would like to appeal out of time as I was unaware of the rules regarding the 14-day time limit and was unrepresented. The decision has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country…”
12. The Applicant has failed to lodge any written submissions in support of his summons on or before 9 June 2022 in accordance with the directions of the Registrar of Civil Appeals dated 26 May 2022.
DISCUSSION
13. Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.
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’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.
17. The Applicant’s delay of about 2½ months to lodge his appeal is substantial. His explanations that he was unaware of the time limit for appeal and was unrepresented are not valid or good explanations for the delay.
18. In any event, the Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 29 July 2020, and has failed to raise any viable ground of appeal against the Order. The complaint that he was not allowed an opportunity to clarify his case and the situation in his home country is without substance. He failed to attend the scheduled hearing of his application for leave to apply for judicial review on 25 September 2019. The Judge was accordingly entitled to deal with the application on paper.
19. There is no prospect of success in the Applicant’s intended appeal.
DISPOSITION
20. The Applicant’s application for extension of time to appeal is refused, and his summons of 26 May 2022 is dismissed.
| (Thomas Au) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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