KAMARA ALPHA IBRAHIM BUBA v. DIRECTOR OF IMMIGRATION

CAMP 54/2020

[2021] HKCA 70

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 54 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 507 OF 2018)

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J U D G M E N T

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

1.  On 5 July 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decision of the Director of Immigration (“Director”) concerning his non‑refoulement protection claim^[1].

2.  The applicant filed a summons on 21 October 2019 seeking leave to appeal against that decision out of time, as the 14-day period to file his notice of appeal ended on 19 July 2019.  A hearing of this application was held on 11 December 2019.  On 14 January 2020, the judge handed down his decision refusing to grant leave to appeal out of time as the intended appeal appears to be hopeless^[2].

3.  On 15 June 2020, the applicant took out the present application in the Court of Appeal for leave to appeal against the judge's decision of 5 July 2019.  On 20 July 2020, the Registrar of Civil Appeals directed that this application shall be treated by the Court of Appeal as an application to seek an extension of time to appeal, in light of the decision of the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22 that an applicant does not need leave to appeal in respect of a refusal of extension of time to bring an application for leave to judicial review.

4.  The applicant is 46 years old.  He first arrived in Hong Kong as a visitor on 13 February 2013 with a passport issued in Sierra Leone, but he claimed in the screening interview that he is in fact a Nigerian born in Nigeria.  He overstayed and was arrested by the police on 15 October 2013.  He raised a non-refoulement claim on 30 October 2013 on the basis that a man called Dominic, his colleagues and the members of Boko Haram would try to kill him in Nigeria and there is a risk of harm from a man called Samuel and members of the National Congress Party (“NCP”) if he is to be returned to Sierra Leone.

The Director’s decision

5.  By a Notice of Decision dated 13 March 2017, the Director rejected the applicant’s claim on BOR 2 risk^[3], BOR 3 risk^[4], torture risk^[5] and persecution risk^[6].

6.  The Director assessed the risks in both the states of Sierra Leone and Nigeria.  The Director found that there are no substantial grounds for believing that the applicant will face further harm upon his return to Nigeria as Dominic, his colleagues and the members of Boko Haram had never caused the applicant any actual bodily harm in the past.  The Director also held that the future risk of harm upon the applicant’s return to Sierra Leone is small as the applicant did not encounter any significant harm from Samuel and the NCP members and the risk of harm should have dissipated after the lapse of time since he left Sierra Leone in 2013.  In addition, the Director considered that the availability of state protection and internal relocation alternatives in Nigeria and Sierra Leone further lowers or negates the level of risk.

The intended judicial review

7.  The applicant did not appeal against the Director’s decision to the Torture Claims Appeal Board (“the Board”).  He filed a Form 86 and an affirmation on 28 March 2018 to seek leave to apply for judicial review out of time against the decision the Director.  He put forward the following grounds for judicial review:

(1)  The Director reached his decision wrongly in assessing the claim.

(2)  The decision is not reasonable or fair.

The judge’s decision

8.  The applicant did not attend the hearing scheduled before DHCJ Bruno Chan on 20 March 2019.  The judge found that the applicant does not have any good reason which can justify his substantial delay. He further held that the applicant’s proposed grounds are just broad and vague assertions which are not reasonably arguable.  As the applicant does not have any prospect of success in his intended judicial review, the judge dismissed the application on 5 July 2019.

9.  As mentioned earlier, his application on 21 October 2019 for leave to appeal against the judge’s decision out of time was dismissed on 14 January 2020. He took out the present application in the Court of Appeal on 15 June 2020 with a supporting affirmation.

The grounds of intended appeal

10.  On 29 September 2020, the Registrar of Civil Appeals made an order requiring the applicant to lodge written submissions by 4 p m on 24 October 2020, failing which he shall be debarred from lodging any written submissions and be deemed to rely on only the representations made in the summons of 15 June 2020 and the affirmation he filed in support.  As the applicant has failed to lodge any written submissions as directed, he is thereby precluded from lodging any written submissions and is deemed to be relying only on the representations made in his summons and supporting affirmation.

11.  The applicant did not state any grounds of appeal in the summons or supporting affirmation.  He only stated in his affirmation that he did not have the appropriate means and did not receive the decision on time. 

Analysis and disposition

12.  In considering whether to extend time to appeal against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 5 July 2019.  The applicant took out a summons at the court below on 21 October 2019.  He was late by about two months, excluding the month of August for the court’s summer vacation.  The delay is considered substantial.

14.  The applicant stated that he had not received the decision on time.  He explained before the judge that he only gave his address to the Immigration Department but did not inform the court after he was released from the Immigration Centre.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).  The applicant’s explanation for his delay is not justifiable.

15.  As his delay is inexcusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

16.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.  In the present application, the applicant failed to put forward any intended grounds of appeal at all.  As he does not have any prospect of success in the intended appeal, we therefore dismiss the summons filed on 15 June 2020.