RE ALOULA MAGLIWE

CAMP 275/2019

[2020] HKCA 595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 275 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 487 OF 2017)

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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 24 May 2018 (“the Decision”)[1], Deputy High Court Judge Woodcock (“DHCJ Woodcock”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 28 April 2017.  In the Board’s decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 13 April 2016 and 17 March 2017 rejecting the applicant’s non-refoulement claim.

2.  On 1 August 2018, the applicant took out a summons for an extension of time to appeal against the Decision.  On 3 October 2019, Deputy High Court Judge Josiah Lam (“DHCJ Lam”) 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 against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 6 November 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 failed to lodge his written submissions as directed. 

5.  The Registrar further directed that unless the applicant lodged his written submissions by that time, he would be debarred from lodging any written submissions, and his application for extension of time to appeal shall be determined on the basis of the summons and the affidavit filed in support. 

6.  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 affidavit, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

7.  The applicant is a national of Togo.  He came to Hong Kong on 14 December 2013 as a visitor and was permitted to stay until 28 December 2013.  He did not depart and overstayed since 29 December 2013.  He surrendered to the Immigration Department on 7 January 2014.  On 15 January 2014, he lodged a non-refoulement claim by way of written representation on the basis that if he were to return to Togo, he would be harmed or killed by the members of the ruling party Union for the Republic (“UNIR”) in Togo as he had involved in the former Minister, Pascal Bodjona (“PB”)’s plan to improve the ruling of the country and PB was arrested and charged with “fraud complicity” in September 2012.  The factual background was succinctly summarized by DHCJ Woodcock at the Decision at [3] – [6].

8.  By Notice of Decision of 13 April 2016 and Notice of Further Decision of 17 March 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[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

9.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  After the hearing on 27 March and 19 April 2017, the Board dismissed the appeal on 28 April 2017.  The Board had conducted oral hearing on two occasions to allow time for the applicant to provide Country of origin information (“COI”) and for him to correct and address the COI on the latest presidential election which should have taken place in 2014 instead of 2016.  For the reasons and analysis stated in [30] to [49] of the Board’s decision, the Board was prepared to accept the applicant was a supporter of PB, the former minister of the Territorial Administration, that he left a well-paid job with the Territorial Administration, all of which supported his claim of leaving his country due to some genuine subjective fear when PB was arrested in September 2012.  The Board had discussed the relevant COI and reports indicating that PB was not politically active anymore since his arrest and release from prison in 2016 and the Togolese authorities were not targeting PB or his supporters to harm them anymore. 

10.  On the other hand, the Board was not prepared to accept that the applicant’s friend had told him the national intelligence agency was about to arrest him and the applicant was on a “black list”.  The Board concluded that the applicant fabricated this part to strengthen his claim for non-refoulement and he had also exaggerated his level of support and involvement in PB’s reform plan for the government.  The Board further concluded that there was only a remote or speculative risk of harm that the applicant would be harmed by the political enemies of PB because of his support for PB.  For the aforesaid reasons, the applicant had not made out a case for non-refoulement protection under any of the applicable grounds.

11.  On 7 August 2017, the applicant filed a Form 86 together with his supporting affidavit for leave to apply for judicial review of the Director’s and the Board’s decisions.  He failed to make the application within the three-months’ time and was late for 6 days.

12.  The applicant advanced the following grounds for his intended challenges:

(1)  The Board refused to postpone the appeal hearing for 30 days as requested by the applicant, so he did not have sufficient time to prepare for the hearing and to respond to the BOR 2 letter received on 24 February 2017.

(2)  There was insufficient time for the applicant to prepare additional submissions and the applicant only managed to find limited information in English with the assistance of a non - government organization (“NGO”) and the information showed the opposite of what the Adjudicator had said.

(3)  The Adjudicator was not happy that the documents were in French but the applicant did not consider he had the responsibility to translate the documents.

(4)  The Adjudicator put too much importance on small issues and misunderstood him that caused him to doubt his credibility.

(5)  There was a lack of legal representation.

The decisions below

13.  The application was heard on 6 November 2017. DHCJ Woodcock accepted the applicant’s explanation of delay as set out in [2] of the Decision.  An extension of time to apply leave for judicial review was granted. Notwithstanding so, DHCJ Woodcock refused leave for the applicant to apply for judicial review after due consideration of the Director’s and Board’s decisions.  The reasons were set out at [12] to [19] of the Decision:

“12. I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed material, claims and evidence with utmost care, meticulously and extreme fairness.

13. The applicant has submitted in his statement that the adjudicator in effect did not act with a high standard of fairness, acted irrationally by placing too much weight on irrelevant matters and he did not understand the applicant’s evidence properly or fully which led to a wrong decision. His misunderstandings led to him not believing the applicant. The applicant reiterated these points in a letter he wrote to the court dated 9 January 2018 which enclosed previous letters submitted.

14. The applicant has made much of the fact the adjudicator made a mistake and thought that there was a recent change of government in Togo which was why he was not at risk if refouled. The adjudicator has addressed this mistake in his decision and made it clear that he is no longer mistaken, see paragraph 31. There is no merit in this ground or submission.

15. There is no merit also in the suggestion that the adjudicator was not happy with his information because they were in French. The adjudicator gave the applicant time to provide English translations of the French reports he wanted to submit; he adjourned the hearing. Ultimately the applicant did not provide English translations but describe the contents of the reports and the adjudicator located information for himself about the subject matter after the hearing in recognition of his duty of fairness. There is no substance to this complaint or ground.

16. I found the allegations that the adjudicator placed too much weight on irrelevant matters and did not understand the applicant’s claim properly to be groundless. In fact, this adjudicator cannot be faulted for being conscientious and meticulous in assessing the applicant’s claim and ensuring he understood it and the COI. His findings are detailed and there can be no criticism of him not giving full reasons for his conclusions.

17. In the oral hearing the applicant did repeat what was in his statement and added that the adjudicator either did not follow his evidence or did not understand his evidence. He also added that he was not given sufficient time to provide more information to support a BOR 2 risk claim. Not only did he have insufficient time, he did not know how to access the information to submit it. This was not brought up during the appeal hearing with the adjudicator, there is no record of this in the decision.

18. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19.  In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung and anor (2007) 10 HKCFAR 676, paras 14-17.  I refuse leave to apply for judicial review.”

14.  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 7 June 2018.  On 1 August 2018, the applicant filed a summons together with supporting affidavit to apply for leave to appeal out of time. 

15.  In the applicant’s affidavit, he explained that he “did not have the submission fee on time as request” and he had “difficulties in making the statement”.  In the applicant’s two-page statement attached to his affidavit, he said he had no legal assistance and only got limited language assistance from a NGO (Justice Centre).  The Applicant further complained that the Adjudicator was wrong with his finding including misunderstanding the Country of origin information (“COI”) regarding the election in Togo.

16.  The summons was heard on 13 and 24 September 2018, and by the Leave Decision made on 3 October 2019, DHCJ Lam refused the application for leave to appeal out of time and dismissed the summons.  On the issue of delay, DHCJ Lam accepted that the applicant did go to the court on 7 June 2018 to indicate he wanted to lodge an appeal against the Decision.  That was the last day of the 14-day period.  The applicant, without any valid excuse, only applied to for a waiver of the filing fee on 17 July 2018.  By then, it was already 5 odd weeks beyond the appeal deadline.  Yet, the applicant could not provide any ground of appeal for the Master to consider the waiver application.  DHCJ Lam found that the applicant failed to justify his delay. 

17.  DHCJ Lam then turned to consider the more important issue of merit.  He found that DHCJ Woodcock had rightly endorsed the Board’s decision after careful consideration and analysis of the applicant’s claim and was satisfied that there was no error of law or procedural unfairness or irregularities in the Board’s decision.  DHCJ Lam did not find any of the applicant’s complaint constitute viable grounds of appeal.  As the intended appeal had no reasonable prospect of success, he refused to grant an extension of time to appeal the Decision out of time.

The present application

18.  On 5 November 2019, the applicant filed a summons together with supporting affidavit seeking leave to appeal against the Leave Decision out of time.  Under Order 59 rule 2B(3) of the Rules of the High Court (Cap. 4A), the applicant may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of the refusal of leave by the judge, which expired on 17 October 2019.  The applicant was late for 20 days in taking out the present summons. Under Order 59 rule 2B(6) of the Rules of the High Court (Cap. 4A), this Court may extend the time for making the application for leave to appeal.

Legal principles

19.  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.

20.  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. 

21.  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

22.  The applicant was late for 20 days in taking out the present summons.  In his supporting affidavit of 5 November 2019, he explained that he did not receive any letter or notice of the Leave Decision.  He was only informed by the immigration officer on 23 October 2019 that he should have received a letter from the court dated 3 October 2019. 

23.  The applicant did not explain why he failed to receive the court letter and the Leave Decision dated 3 October 2019, which were mailed to an address in Kam Tin, New Territories, provided by the applicant in September 2018. The court file did not show any undelivered mail which suggested the letter should have been sent to the applicant’s address provided to the court. In our view, the applicant’s delay is inexcusable. 

24.  The applicant was late for 55 days in taking out the summons for an extension of time to appeal against the Decision and we agree with DHCJ Lam that the applicant had failed to provide any good and valid reason for the delay. 

25.  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.

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

27.  The applicant did not provide any draft or proposed grounds of appeal in his summons and supporting affidavit to challenge the Decision and/or the Leave Decision and his intended appeal is bound to fail.  

28.  In this case, the applicant’s case was rejected by the Board on the basis that the relevant COI of Togo did not indicate the national intelligence agency or the Togolese authorities are currently targeting PB or the supporters of PB, who is no longer politically active since his release from prison in 2016: see [40] to [41] of the Board’s decision. The Board further found that it was implausible that a childhood friend of the applicant revealed to him that he was on the “black list” of the national intelligence agency and he would be arrested upon his return.  The Board, having regard to all the evidence, found only a remote or speculative risk, not a real risk, that the applicant would be harmed by the national intelligence agency and/or the Togolese authorities upon his return.  As these were within the Board’s province of findings, we see no proper basis to interfere.

29.  We have also carefully reviewed the Decision and are satisfied that DHCJ Woodcock had examined the Board’s decision with vigorous examination and anxious scrutiny and that the applicant’s intended application for judicial review was rightly refused. 

30.  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.

31.  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 1052

[2] [2019] HKCFI 2341

[3] 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.

[4] 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.

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

[6] 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.