RE JARJU BAKARY

CAMP 40/2020

[2021] HKCA 34

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 40 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1106 OF 2017)

_____________________________

_____________________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  By the decision of 15 November 2018 (“the Decision”)[1], Campbell-Moffat J (“the Judge”) refused to extend time for the applicant to seek leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 21 July 2017.  In the Board’s decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 21 February 2017 rejecting the applicant’s non-refoulement claim.

2.  Following H v Director of Immigration [2020] HKCFA 22, the applicant may apply as of right made Order 59 rule 21(1)(g) against the Decision within 14 days and the application expired on 29 November 2018. 

3.  By a summons dated 21 May 2020, the applicant sought leave from this court to appeal against the Decision.  The applicant should apply for an extension of time for appeal against the Decision and we are prepared to treat the present application as application for an extension of time to appeal the Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 26 May 2020, the applicant was directed to lodge his written submissions in support of his summons on or before 2 July 2020.  The applicant failed to lodge 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 and the supporting affirmation, 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 Gambia.  He came to Hong Kong as a visitor on 9 July 2014 and was permitted to stay for 3 months.  He did not depart and overstayed since 8 October 2014.  He surrendered to the Immigration Department and lodged his non-refoulement claim on 14 November 2014 on the basis that if he were to return to Gambia, he would be harmed or killed by the Gambian police.  The factual background was succinctly summarized by the Judge at the Decision at [7].

7.  By Notice of Decision of 21 February 2017, the Director assessed the applicant’s claim on all applicable grounds and determined them against him.  The Director’s decisions covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].

8.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  After the hearing on 11 July 2017, for the reasons set out in [5.1] to [5.10] of its decision, the Board dismissed the appeal on 21 July 2017.  In gist, the Board rejected the applicant’s case on the issue of credibility as his evidence was vague and missed important details.  Further, the fact that the applicant had successfully relocated to Senegal without encountering any problem for 7 years is inconsistent with his saying that “because he was feeling insecure” and therefore he fled to Hong Kong.  The Board further noted that he was subsequently arrested and convicted for trafficking in a dangerous drug in Hong Kong.  On the totality of the evidence, the Board found that the applicant came to Hong Kong for economic reason rather than seeking non-refoulement protection claim.  For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds.

9.  On 19 December 2017, the applicant filed a Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decisions.  By that time, he had delayed his application for 59 days and he failed to provide any explanation for his delay nor any grounds for his intended challenge save for saying that he was not satisfied with the Board’s decision and that he was not “given the chance for any USM (the unified screening mechanism).”  

The Judge’s decisions

10.  The application was considered on papers and the Judge dismissed the application on 15 November 2018 after due consideration of the Director’s and Board’s decisions.  In addressing his complaint that he did not receive USM, the Judge pointed out at [3] of the Decision that:

“3.  The Applicant was required to attend a screening interview on 3 January 2017, but failed to attend as he claimed to be unfit.  A medical certificate was not provided until 17 February 2017, which indicated the Applicant had a cough and that he did not seek medical assistance until 5 January 2017, two days after the interview.  Subsequent to that failure to attend, the Director sought further clarification in writing from the Applicant, which was provided.  Given the context of the claim, the Director took the view, that sufficient time and opportunity had been given to the Applicant to support his claim and did not accede to a re-scheduled screening interview.  The Director of Immigration (“the Director”) dismissed his claim on all grounds under the Unified Screening Mechanism (“USM”), by Notice of Decision (“the Decision”) on 21 February 2017.  The Applicant appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 2 March 2017.  The Adjudicator of the TCAB, Mr William Lam, heard him on 11 July 2017 and considered his appeal on all applicable grounds.  The Adjudicator refused his appeal on 21 July 2017.”

11.  On the merit of the applicant’s case, the Judge set out her findings and reasons at [8] of the Decision:

“8. The Applicant’s claim for judicial review, as explained above, is not reasonably arguable and does not have a realistic prospect of success. I come to that conclusion having considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and 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 their determinations, which were open to them on the facts and eminently reasonable.”

The present application

12.  The applicant only took out a summons before this Court seeking leave to appeal against the Decision on 21 May 2020.  By following H v Director of Immigration (supra), this Court has processed the application as an application for extension of time to appeal the Decision.

Legal principles

13.  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.

14.  Even if the court does not accept that the applicant’s explanation for the delay is reasonable, the court would still 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. 

15.  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

16.  The Decision was made on 15 November 2018.  The present summons was taken out more than 17 months after the expiry of the time for appeal.   The delay was undue and substantial and the applicant did not provide any explanation for the delay except for saying that “I did not get my result to apply for appeal.” 

17.  The court file showed that the applicant failed to give his updated address to the court and upon the court’s enquiry on 23 November 2018, the Immigration Department provided the last reported address of the applicant as “Room D, 6/F, 343-345 Tai Nan Street, Sham Shui Po” on 3 December 2018.  The court sent the Decision to the new address accordingly.  However, the letter enclosing the Decision was returned to the court on 24 December 2018 for the reason of “unclaimed”. 

18.  In our view, if the applicant is minded to proceed with his application, he should provide the court with his updated address which could reach him and he was at liberty to make enquiry with the court about the progress of case.  Further, if he had made proper enquiry with the Immigration Department, he would be informed of the Decision also.  If the applicant had taken any of the said steps, he might take all the necessary actions and would not let the matter delayed for more than 17 months.  The delay was outrageous and inexcusable.

19.  Thus, 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.

20.  We therefore turn to the merit of the intended appeal.

21.  The applicant did not provide any draft or proposed grounds of appeal in his summons and supporting affirmation to challenge the Decision and he merely said the follows:

“Leave to be grant. As Director of Immigration, Adjudicator did not give me correct decision. And I have no way to return my country. So leave is important for me to save my life.”

22.  As the applicant failed to put forward any grounds of appeal or pinpoint any error of law or procedural unfairness or irrationalities against the Decision, with the legal principles stated in [15] of this judgment, his intended appeal is bound to fail.

23.  Further, the applicant’s case was rejected by the Board on the issue of credibility and by the very fact that he had safely relocated to Senegal for 7 years before he came to Hong Kong, the Board had rightly found that the applicant did not warrant any non-refoulement protection on all applicable grounds.  It was perfectly open for the Board to reach its findings which was justified and eminently reasonable.

24.  We have also carefully reviewed the Decision and are satisfied that the Judge had examined the Board’s decision with vigorous examination and anxious scrutiny and that the application was rightly refused. 

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 21 May 2020 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.

[1] [2018] HKCFI 1824.

[2] This refers to the risk of violation of the right of 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 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[5] 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 and its 1967 Protocol.