RE DOUCOURE ADAMA

CAMP 426/2021

[2022] HKCA 302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 426 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 526 OF 2017)

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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 Campbell-Moffat J (“Judge”) on 15 May 2020[1] refusing to grant leave to apply for judicial review. The intended judicial review is directed against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 4 August 2017. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 19 July 2016 and 17 July 2017 respectively rejecting the applicant’s non-refoulement claim.

2.  On 8 October 2020, the Judge refused to extend time for the applicant to appeal against her decision of 15 May 2020.[2]

Background

3.  The applicant is a Malian national born in 1990. He arrived in Hong Kong on 30 March 2014 and was permitted to remain as a visitor until 6 April 2014. He did not depart but instead surrendered himself to the Immigration Department on 7 April 2014, raising a non-refoulement claim on the same day.

4.  The applicant said he was raised by a couple who were Djihadists and that he was forced to join the Djihadists. His claim was based on the fear that, if he returned to Mali, he would be harmed or even killed by the Djihadists, or by the Malian government, French troops and the troops of the Organization for African Unity. The detailed factual background of his claim was set out at [18] of the Board’s decision and summarized by the Judge at [4] of the Form CALL-1.

5.  By notices of decision dated 19 July 2016 and 17 July 2017 respectively, the Director assessed the applicant’s claim in relation to all applicable grounds and determined it against him. The former decision covered BOR 3 risk,[3] persecution risk,[4] and torture risk;[5] the latter covered BOR 2 risk.[6]

6.  The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 25 July 2017, during which the applicant gave oral testimony and answered questions from the Board. The Board found that he was not a credible witness, since his oral evidence at the hearing differed considerably from the information in his non-refoulement claim form and his screening interviews. At paragraphs 34 to 46 of its decision, the Board noted that it had put those inconsistencies to the applicant at the Board hearing, but the applicant was unable to explain the inconsistencies satisfactorily. Ultimately, by reason of the “multiple, material inconsistencies in his evidence, his implausible claims and his non-persuasive explanations” as explained by the Board, it rejected the core factual elements of the applicant’s claim.

7.  As a result, the Board found that the applicant faced no real risk of harm from any relevant source in the event of refoulement, and dismissed his appeal on 4 August 2017 in relation to all applicable grounds.

The Judge’s decisions in the court below

8.  On 17 August 2017, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his supporting affirmation, he stated that the Board had only relied on country of origin reports without considering the actual situation on the ground in his country based on local news reports and other realities and that there was other evidence regarding human rights abuses by state security forces.

9.  Following consideration of the documents only, on 15 May 2020 the Judge refused to grant leave to apply for judicial review, for reasons set out at [8] – [11] of the Form CALL-1 as follows:

“ 8. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decision of the Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

9. There were no grounds of review save for the bare complaint that the Adjudicator had not considered the actual situation on the ground. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

10. 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 Adjudicator had not apprised himself of the local situation where relevant to this claim. That was clearly not the case. Further, I have not found any error of law or procedure. I see no evidence of procedural unfairness (quite the opposite) 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 his determination, which was open to him on the facts and eminently reasonable.

11. 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.”

10.  The applicant failed to appeal against the Judge’s decision within the 14-day period prescribed by rules of court. On 29 July 2020, he filed a summons to seek an extension of time to appeal. In his summons and supporting affirmation, the applicant stated that he was not satisfied with the judgment that his life would be in danger and he would be killed if he were to return to his country.

11.  The application for extension of time was scheduled for an oral hearing on 8 October 2020 which the applicant failed to attend. As a result the Judge determined the application on paper. In her decision dated 8 October 2020, the Judge dismissed the application as she did not see any merit in the intended appeal.

The renewed application before this Court

12.  On 4 October 2021, the applicant filed a summons seeking from this Court an extension of time to appeal against the Judge’s refusal to grant leave for judicial review. In the summons and supporting affirmation, he reiterated that his life would be in danger if he were to return to his country.

13.  On 4 October 2021, the Registrar of Civil Appeals directed that the applicant must lodge his written submissions with the court by 18 October 2021, failing which the application would be processed based on the available documents and materials.

14.  The applicant has failed to lodge any submissions. We consider it appropriate to deal with this application on paper without a hearing, based on the available documents and materials.

Discussion

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

16.  The applicant’s intended appeal was late by 2 months. The delay was substantial, and the applicant has not provided any explanation for the delay. On this basis, we should not grant an extension of time unless the intended appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

17.  In assessing the merit of the intended appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judgment below, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

18.  In the present case, the Board rejected the applicant’s non-refoulement claim due to its adverse finding on the applicant’s credibility, having regard to the inconsistencies in his evidence and implausibility of his claims. Having rejected the applicant’s evidence, the Board found that there was no real risk of harm in the event of refoulement. On the basis of the facts and evidence, such findings are within the province of the Board.

19.  In light of the applicant’s criticism that the Board had failed to consider the actual situation in his country, the Judge specifically looked into that suggestion but found against the allegation that the Board had not apprised itself of the local situation relevant to the claim. Nor did the Judge find any error of law or of procedure in the Board’s process and decision.

20.  Since the applicant has completely failed to advance any proposed grounds of appeal or identify any possible error made by the Judge, there is no proper basis for an appeal.

21.  Having considered the materials before us, we can see no ground disturbing the Judge’s conclusion that there is no reasonably arguable ground for judicial review of the Board’s decision. The Judge was right to refuse leave for judicial review.

22.  For these reasons, there is no prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons dated 4 October 2021 is accordingly dismissed.