RE YAKUBU DANLAD

CAMP 277/2019

[2020] HKCA 742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 277 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 82 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By the decision of 17 June 2019 (“the Decision”)[1], Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 5 January 2018.  In its decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 10 June 2015 and 12 June 2017 rejecting the applicant’s non-refoulement claim.

2.  On 30 July 2019, the applicant took out a summons for an extension of time to appeal against the Decision.  On 14 October 2019, the Judge refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3.  By a summons dated 5 November 2019, the applicant sought leave from this Court to appeal out of time against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 6 and 25 November 2019, the applicant was directed to lodge his written submissions in support of his summons on or before 11 December 2019.  The applicant lodged his written submissions as directed. 

5.  Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Ghana.  He arrived in Hong Kong on 8 February 2009 as a visitor.  He then travelled to Macau on 11 February 2009 and re-entered into Hong Kong on the same day.  He was permitted to stay until 14 February 2009.  He did not depart and overstayed since 15 February 2009.  He was arrested by the police on 2 November 2009 and was then transferred to the Immigration Department for investigation.  On 4 November 2009, he lodged his non-refoulement claim by way of written representation on the basis that if he were to return to his country, he would be harmed or even killed by gangsters whom his fought with when his sister Kanday was raped by them at the visitor house in Bolgatanga in Ghana in or about 2008 and one of them was killed as a result.  The factual background was succinctly summarized by the Judge at [1] – [6] of the Decision.

7.  By Notice of Decision dated 10 June 2015 and Notice of Further Decision dated 12 June 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The Director’s decisions covered the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

8.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  After the hearing on 12 December 2016, the Board dismissed the appeal on 5 January 2018.  For the reasons and analysis stated in [27] – [45] of the Board’s decision, it found that the applicant’s account of event was incredible and his evidence was unreliable when he claimed that those gangsters involved in his attack had been turned into or empowered into land gangsters.  The Board rejected his case and further assessed the level of harm from those local gangsters upon his return to Ghana as low, and that state protection as well as reasonable internal relocation in other parts of Ghana away from where those local gangsters were located would further lower or negate any such risk of harm from them.  For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds. 

9.  On 16 January 2018, the applicant filed a Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decision.  The applicant advanced the following grounds:

(1)  The Board had ignored all the challenges faced by the applicant with regard to his previous activities as land guard and other illegal activities in Ghana.

(2)  The Board had ignored the fact that the applicant’s case involved the loss of life and his fleeing from being forced into prison or killed.

(3)  Despite all the lives that had been lost as a result of land guard activities in Ghana and the danger during his struggle with one of the land guard group, the Immigration officer had refused to consider his situation from the evidence of lawlessness and selective arrest by some corrupt police officers.

(4)  There had been a series of reports of land guards being used as terrorist attacking innocent people and those groups were formed by politicians from the current Ghanaian government.

(5)  The applicant was forced by the Immigration Department to go back to his country when there was threat from the land guard group. 

10.  The applicant further submitted extracts of some local newspapers to support his case of land guard terror.

The Judge’s decisions

11.  The applicant did not request for an oral hearing and the Judge disposed the application on paper.  By the Decision made on 17 June 2019, the Judge decided to refuse leave for the applicant to apply for judicial review after due consideration of the Director’s and Board’s decisions.  The reasons were duly set out at [14] to [18] of the Decision:

“14. It is therefore clear that the adjudicator did properly and adequately deal with this ‘updated’ claim of the applicant, and based on the information and materials available and with the benefit of having heard his oral evidence, the adjudicator was rightly entitled to reject this claim of the applicant for the reasons set out in his decision, and I do not find any basis or merit in this complaint of the applicant.

15. 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 being 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.

16. Apart from the above complaint which I have found to have no basis or merit, the applicant did not put forth any other ground, nor did he show any error in the Board’s decision to justify any interference by the Court.

17. Furthermore, the fact that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Ghana, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18. In the premises and 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.”

12.  The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 1 July 2019.  On 30 July 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. 

13.  The summons was heard on 3 September 2019 and by the Leave Decision made on 14 October 2019, the Judge refused the application for leave to appeal out of time.  The Judge took the view that the applicant’s delay for one month could not be regarded as insignificant, for which the applicant explained that he did not receive any letter from the court and hence was not aware of the Decision until he was informed by the immigration officer of the same.  Besides, the court record showed that the Decision was sent to him on the same day when it was marked by ordinary post to his last reported address and it had not been returned through undelivered post.  In the circumstances, the Judge was not satisfied that the applicant had provided any good reason for his delay.

14.  The Judge then turned to the more important issue of the merit of the underlying application.  He found that the applicant failed to provide any grounds of appeal in his summons or supporting affirmation, or why it may be argued that the Decision was unfair or unreasonable. The applicant merely repeated the background of his case and his claim that his problems back home remained unsolved and hence he should be allowed to stay in Hong Kong.  As such, the Judge did not see any prospect of success in the intended appeal and thus dismissed the summons. 

The renewed application

15.  On 5 November 2019, the applicant filed a summons together with supporting affirmation seeking leave to appeal against the Leave Decision. He did not provide any ground for his intended appeal against the Decision in the summons or supporting affirmation save for saying that he did not deliberately delay in taking out the summons to appeal against the Decision and he urged the court to reconsider and grant his application as he still faced the same danger in his home country.  In his written submissions, he merely repeated his explanation for his delay as advanced before the Judge at the hearing below.

Legal principles

16.  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 prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

17.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if he has merit in the intended appeal: see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

18.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of 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].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

19.  We regard that the delay of one month as significant and we take the same view as the Judge that the applicant failed to provide any good reason for his delay.

20.  Where the delay was both inordinate and inexcusable, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted, see Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

21.  We now turn to the merit of the intended appeal.

22.  As the applicant failed to put forward any grounds of appeal against the Decision, with the legal principles stated in [18] of this judgment, his intended appeal is bound to fail. 

23.  Further, upon our careful review of the Board’s decision, the applicant’s case was rejected on the issue of credibility and that his evidence was considered to be reliable in material particulars.  The Board assessed that the risk of harm was low and the feared ill-treatment was unlikely to materialize.  In our view, the Board had properly analysed and assessed the applicant’s case and it was perfectly open for it to reach its findings and conclusion.  We do not see any error of law or procedural unfairness or irregularities in the Board’s decision that would warrant our intervention.  

24.  In our judgment, nothing set out in the written submissions can be constituted as valid ground of the intended appeal.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 5 November 2019 is dismissed accordingly.

26.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.