RE JALLOW MOMODOU Y

CAMP 428/2021

[2022] HKCA 240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 428 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2946 OF 2018)

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J U D G M E N T

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

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 7 January 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”)  ([2020] HKCFI 114). An earlier application for extension of time to appeal was refused by the Deputy Judge on 9 August 2021 (“the EOT Decision”)  ([2021] HKCFI 2121).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 29 October 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 12 April 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the papers, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Gambia.  He arrived in Hong Kong on 6 October 2014 and was permitted to remain as a visitor until 4 January 2015.  He did not depart and had overstayed since 5 January 2015.  On 9 January 2015, he surrendered to the Immigration Department for overstaying.  He lodged a non-refoulement claim on 23 January 2015 on the basis that he feared he would be harmed or killed by the Government of Gambia through the National Intelligence Agency.

5.  By a Notice of Decision dated 12 April 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  He attended oral hearings before the Board on 15 March 2018 and 3 September 2018 and gave evidence with the assistance of a Wolof-speaking interpreter.  The Board dismissed his appeal on 29 October 2018 and confirmed the Director’s Decision.  The Board noted that the applicant had only made bare assertions and that his credibility was significantly doubted in light of his oral evidence and the evasiveness he displayed when answering questions from the Board.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his case on all applicable grounds.  The Board also considered that state protection and internal relocation would be available to the applicant.  Accordingly, the Board dismissed his appeal.

The Leave Decision

7.  On 21 December 2018, the applicant filed a Form 86[5] with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicant attended an oral hearing before the Deputy Judge on 3 July 2019.  A Wolof interpreter was present to provide language assistance.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“Application for leave to apply for Judicial Review

9. In his Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

10. The applicant relied upon the grounds in support of his application below.

1. The approach to assess credibility by the Board was unfair and incorrect.

2. The Board did not specify any explanation or evidence to support its finding of his credibility, referring to paragraphs 104 and 161 of the Board’s Decision. The Adjudicator therefore used his subjective personal impression to assess his credibility.

3. The Board failed to give sufficient reasons or clear finding on the plausibility of each of the identified material facts in support of its findings.

4. The Board relied upon his demeanour to assess his credibility – a subjective impression approach.

5. The Board was wrong not to attach any weight to the hearsay evidence and his evidence, which the Adjudicator described as bare assertions in paragraph 99, which is inconsistent with the UNHCR Handbook: ‘…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit to the doubt.’

6. Therefore, the Board had raised an unreasonable high evidential threshold in its assessment of his evidence.

DISCUSSION

The Board’s Decision

11. The applicant appeared before me. He complained that there was no interpreter at the screening interview. His lawyer had to adjourn the meeting from time to time so that they might go outside the interview room to clarify his instructions. He had an interpreter at the Board hearing. The Board had a hearing de novo of his case.

12. I checked with the applicant the facts he relied upon for his application as set out in the Board’s Decision. He confirmed those were the facts he relied upon and there was nothing that he wished to add to them.

13. The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at paragraph 21 held:

‘Unless there are good reasons to the contrary, benefit of the doubt should be given to the applicant for the credibility of the facts.’

14. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held:

‘42. The Board’s decision is final.’

‘47. …To the extent that this depended on an assessment of the applicant’s credibility the board was perfectly entitled to come to the adverse conclusion that it did, namely that the applicant was a liar who was seeking by his falsehoods to advance his interests.’

15. The question hinges upon the way the Adjudicator had assessed the applicant’s evidence. In the Board’s Decision, the Adjudicator had set out the legal principles and the reasons that he adopted for the assessment of the applicant’s credibility. See paragraphs 96-113. It appears that he was alive to those legal principles when he assessed the evidence given by the applicant.

16. Grounds (1) is the applicant’s opinion without supporting evidence.

17. Ground (2) refers to paragraphs 104 and 161 of the Board’s Decision. In these two paragraphs, the Adjudicator set out his approach of assessing the applicant’s evidence, pointing out the deficiency of his bare assertions, which he was quite entitled to do.

18. It is also wrong to say that the Board did not give reasons for its findings. For example, when it did not accept that the applicant faced a high-risk of harm should he return to Gambia, it set out the reasons that the applicant had left the country for other places and returned without any problem and that he was able to obtain his passport without difficulty; and finally, it found that the APRC were no longer in power and PPP, the party he supported shared power in a coalition government. See paragraphs 118-120.

19. The Board is not obliged to give detailed reasons for each and every piece of facts it did not believe. It may give reasons in support of the general impression of the quality of the applicant’s evidence. When it came to the crucial evidence in support of the applicant’s claim, it should give sufficient reasons, such as paras 118-120, which the Board had done. Ground (3) fails.

20. Grounds (4) and (5) can be considered together. The Board was entitled to and did consider the applicant’s demeanour in its assessment of the applicant’s evidence. It commented that the applicant was evasive in giving evidence and he refused to answer a question. The applicant did not dispute that he refused to answer a question. There was no reason for not answering the question. In my view, the Adjudicator was entitled to draw adverse inference against the applicant’s credibility under such circumstances. See Li Defan & Another v HKSAR (2001) 5 HKCFAR 320 at §27, in which Lord Hoffmann NPJ cited the High Court of Australia: Weissensteiner v. The Queen (1993)  178 CLR 217:

‘... it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it….’

21. Ground (6) fails as whether or not the Board accepted the applicant’s evidence, which is a matter of discretion for the Adjudicator, has nothing to do with raising of the evidential threshold.

22. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

23. Since the applicant’s application for the intended judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.”

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 11 March 2020, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was over one month late with his intended appeal.  In both the EOT Summons and the supporting affirmation, he only stated that he was late in making his application because of a lack of knowledge and insufficient resources.

11.  By the EOT Decision, the Deputy Judge considered that the applicant was unable to show any reasonable prospect of success in his intended appeal.  Accordingly, his application for extension of time to appeal was dismissed.

The Present Application

12.  By a summons and supporting affirmation both filed on 5 October 2021, the applicant reapplied for extension of time to appeal.  In both his summons and supporting affirmation, he only stated:

“Respected Sir / Madam, I am late for apply due to lock of knowledge and insufficient sources. Please accept my late filling application. So that I can process my case further. I hope I will get your favour.” (sic)

13.  Pursuant to the directions given by the Registrar of Civil Appeals on 5 October 2021, the applicant lodged his written submissions on 11 October 2021.  In his submissions, he claimed that his life would become worse if he returned to his country and that he was not satisfied with all the decisions given on his case. He claimed that the Board ignored many things related to his case as the actual situation in his home country was different from what the Board thought. He asserted that in his country, torture and deaths were common in police custody and that it was difficult to get justice in a corrupt environment and that people like him were living under threat due to strong enemies.  It is noted that these are all general and bare assertions unsupported by specific particulars or evidence in support.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  We consider that the applicant’s delay over one month is substantial and that the applicant has failed to provide any cogent explanation for his delay.  Ignorance of the law on the part of the applicant is not a reasonable excuse for his substantial delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

16.  The 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].  In particular, in assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

17.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper ground of appeal or error committed by the Deputy Judge.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

18.  In any event, the applicant’s general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal.  As repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: 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].

19.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 5 October 2021 dismissed.