RE DIALLO THIERNO AMADOU

CAMP 170/2018

[2019] HKCA 564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 170 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 486/2017)

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J U D G M E N T

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

Introduction

1.  On 4 May 2018, 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/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 6 June 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) rejecting the applicant’s non-refoulement claim.

2.  On 30 October 2018, the Judge refused to grant leave for the applicant to appeal against the said decision of 4 May 2018 out of time.

3.  By a summons dated 19 November 2018, the applicant renewed before this Court his application for leave to appeal out of time.

Background

4.  The applicant holds both Guinea and Nigeria passports.   He entered Hong Kong on 27 September 2012 on the strength of his Guinean passport and was permitted to remain as a visitor until 11 October 2012.  He overstayed and was arrested by the police on 3 August 2014.  He lodged his claim for non-refoulement protection on 5 August 2014.

5.  His claim was based on the fear that, if returned to Guinea or Nigeria, he would be harmed or even killed by the members of a religious group known as Alaka or the Oracle because his father refused to take up the leadership of the group.  He also feared that, if returned, he would be harmed or killed by his father’s creditors because he could not repay the loan on behalf of his father.  The background of the case was summarized by the Judge in [2] – [4] of the Form CALL-1 (published as [2018] HKCFI 946).

6.  By two notices of decision dated 11 July 2016 and 27 February 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined against it.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]; and the latter the BOR 2 risk[4].

7.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 13 March 2017.  Although the applicant elected not to testify at the hearing, he answered questions put to him by the Board.  Having considered the applicant’s account, the Board accepted it as coherent and plausible. However, the Board considered that the applicant had never been subjected to any physical violence at the hand of the members of the Oracle or his father’s creditors.  Furthermore, the Board found the alleged pervasive influence of the Oracle to be speculative, and the influence of his father’s creditor was only based on hearsay.  The Board therefore found that the applicant could not make out a case for non-refoulement protection.  It also opined that internal relocation was a viable option for the applicant.  The Board dismissed the applicant’s appeal/petition on 6 June 2017.

The Judge’s decisions

8.  On 4 August 2017, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The Form 86 did not contain any ground for seeking relief. In his supporting affirmation dated 4 August 2017, the applicant stated that he could not return to either Nigeria or Guinea because he would not be safe there.  Apart from reiterating the background of his case, the applicant also mentioned the failure of the Nigerian Government to stop terrorist attacks by Muslim extremists on Christians. 

9.  The applicant did not request for an oral hearing and the Judge decided to proceed with the application on paper.  Having considered the decisions of the Director and the Board, the Judge refused to grant leave for the applicant to appeal for judicial review.  The reasons in refusing leave were set out in [10] – [11] of the Form CALL-1 as follows:

“ 10. On 4 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but neither in it nor in his supporting affirmation of the same date did he set out any grounds for his intended challenge other than merely repeating his claim as before that his life would be in danger if he is refouled to Guinea or Nigeria. Clearly high standards of fairness do not entitle the applicant to simply repeat his claim and then sit back in his leave application for judicial review for the Court to look to see if any ground exists for his intended challenge: see CH v Director of Immigration [2011] 3 HKLRD 101.

11. Nevertheless, having proceeded to consider 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.  In the premises I do not see any ground which the applicant could have relied on for his intended challenge, and accordingly I refuse his leave application.”

10.  The applicant did not lodge any appeal in respect of the Judge’s refusal of leave within the 14-day time limit for appealing (which expired on 18 May 2018).  He took out a summons dated 4 September 2018 for an extension of time for him to do so and explained in his supporting affirmation of the same date that the reason for the delay was that he did not check his own mailbox and was confused as to what to do upon receipt of the decision.  The Judge did not accept his explanation.  The Judge also found no basis for accepting that the intended appeal had any prospect of success.  By a decision dated 30 October 2018 (published as [2018] HKCFI 2391), the Judge refused to grant leave to appeal out of time.

The renewed application

11.  In the summons dated 19 November 2018, the applicant stated that:

“ Extension of time to file the notice of appeal against the order 30/10/2018 of Judge Bruno Chan, also plead to look into this issue for a perfect review thanks.” (sic)

12.  In his supporting affirmation of the same date, the applicant deposed that:

“ Due to the problems back home in country Guinea and Nigeria is not settled, it’s a risk to go back to my country and that most reason appeal for judicial review.” (sic)

13.  Notwithstanding having been directed to do so, the applicant did not lodge any written submission in support of his application.

Legal principles

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

15.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should 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. 

16.  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 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].  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

17.  We are of the view that the delay of 3½ months in bringing an appeal against the Judge’s decision was substantial.  We also agree with the Judge that the applicant’s explanation for the delay was not acceptable.

18.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection on the ground that the applicant failed to make out a case for the protection.  As explained, the assessments of the risk of harm and internal relocation are within the province of the Board.  The court will not interfere with such assessments unless they are reversible on public law grounds.  The Judge, after rigorous examination and anxious scrutiny, did not find any public law grounds that warrant the court’s interference with the Board’s decision.

19.  In our judgment, there is nothing in the summons or the supporting affirmation which can possibily give rise to a valid ground of appeal.  The applicant simply failed to pinpoint any error in the Judge’s decision.

20.  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. 

Conclusion

21.  The summons dated 19 November 2018 is dismissed accordingly.

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