RE DARISUREN GANBOLD

CAMP 384/2021

[2021] HKCA 1835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 384 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2851 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s renewed application for extension of time to appeal against the order of Deputy High Court Judge Lung (“the Judge”)  given on 5 August 2020 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of his application.  

3.  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 applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal against the decision of the Director of Immigration (“the Director”)  refusing her non-refoulement claim.

5.  The applicant is a Mongolian aged 61.  He travelled between Mainland China and Hong Kong many times between July and November 2017.  He last arrived in Hong Kong on 9 February 2018 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 9 March 2018.  He made a non-refoulement claim by way of written representations dated 26 March and 3 April 2018. His claim is based on fear of being harmed or killed by his former employer (“SE”), who was an influential political figure in Mongolia, and his son (“G”)  because he had informed a journalist (“M”)  of SE’s past criminal history and G’s drug addiction and assault of a man (“B”)  who later died of the injuries.  He later learnt that M had told G about what he disclosed to her, which caused him to fear for his life.  The details of the applicant’s claim were set out in the Director’s decision at [7].  We will not repeat them. 

6.  By his decision dated 4 October 2018, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant appealed the Director’s decision to the Board.  As he requested for a decision without a hearing, the Board dealt with his appeal on the papers.  By its decision dated 9 November 2018, the Board dismissed the appeal.  The Board found the applicant’s case failed to satisfy the requirements for protection under the applicable grounds in that: (i)  the applicant had not suffered ill-treatment or physical or mental pain or suffering; (ii)  it was not shown that there was harm or threat of harm instigated by anyone acting in a state capacity; (iii)  it was not established that there were substantial grounds showing a foreseeable and real risk of harm or suffering in the future; and (iv)  state protection was available.

8.  Separately, the Board also had concerns about the credibility and reliability of the applicant’s claim.  It noted that the applicant had since July 2017 entered Hong Kong a number of times, yet it was only two weeks after his arrest in March 2018 that he first raised a non-refoulement claim.  The Board considered this was inconsistent with his claim that he has grave fears for his life since April 2017.  The Board also found the applicant’s responses to the questions put to him during the screening interview problematic, such as why he left Mongolia and overstayed in Hong Kong and did not raise a non-refoulement claim despite having ample opportunity to do so in the eight months between July 2017 and March 2018.  The Board regarded the applicant’s overstaying in Hong Kong and his subsequent conviction of theft showed him to be dishonest. 

9.  On 12 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  In his affirmation, the applicant put forward the following grounds for seeking relief:

(1)  He was not educated;

(2)  He was not provided with a lawyer or legal advice;

(3)  The Board decided his case on assumptions without considering the truth and serious evidence presented by him; and

(4)  in the absence of other evidence, the Board should not infer that he had no case. 

10.  The Judge dealt with the application on the paper.  By a Form CALL-1 dated 5 August 2020[5], the Judge dismissed the application for the following reasons (at [12] to [17]):      

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant. See paragraph 9 above.

13. The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

  “13. … 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.”

15. Ground (1)  does not assist him. Ground (2)  fails in view of the Court of Appeal’s decision. Grounds (3)  and (4)  are his opinions without any evidence in support. They fail too.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

11.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 14 September 2020.  This is because by reason of section 31(1)  High Court Ordinance, Cap. 4, the month of August which is the summer vacation (see section 29(2)  of High Court Ordinance and Order 64 rule 1(1)  of the Rules of the High Court)  is to be excluded in calculating the 14-day time limit for filing the Notice of Appeal. 

12.  On 27 August 2020, the applicant filed a summons together with an affirmation to apply for an extension of time to appeal the Judge’s decision.  As explained above, the time for the applicant to appeal did not expire until 14 September 2020; hence it was not necessary for him to apply for an extension of time to appeal.  Unfortunately, this mistake was not picked up.  The Judge dealt with the application on the papers, and by his decision handed down on 14 July 2021[6], refused the application.

13.  On 10 September 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

14.  Although, as noted above, the applicant did not initially need an extension of time to appeal, by the time he filed the present summons, the time for appealing had expired.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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.  In the circumstances of this case, the applicant’s delay is excusable.  We turn next to consider the prospects of success of the intended appeal.   

16.  In considering the merits of the intended appeal, we 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 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’s decision, 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.

18.  In the present application, the applicant put forward the following grounds in his affirmation:

(1)  The Judge was wrong in saying he is an illegal immigrant.  In fact, he came to Hong Kong legally as a visitor.  The Judge’s finding of fact was faulty. (“Ground 1”)

(2)  The Board’ reasons for rejecting the appeal was wrong when it stated that “his evidence was not reliable because he only raised non-refoulement claim some 8 months after he came to Hong Kong …” The applicant was last permitted to remain in Hong Kong until 28 February 2018 and he lodged his non-refoulement claim on 26 March 2018.  There was thus only one month and not eight months before he made a claim.  The Judge had overlooked this mistake and also repeated the same mistake in his reasons. (“Ground 2”)

(3)  There is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review. (“Ground 3”)

19.  The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and also made reference to the Wednesbury unreasonableness principle.  It argued that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim.  It also complained that the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal without properly assessing the applicant’s credibility.  It finally referred to section 37ZT(2)  of the Immigration Ordinance, which provides that when deciding whether to allow a late filing of notice of appeal, the Board may only take account of (i)  the statement of reasons in the application for late filing and any accompanying documents; and (ii)  any other relevant matters of fact within the knowledge of the Board.    

20.  We are of the view that the grounds and arguments put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  Our reasons are as follows:

(1)  In respect of the three grounds set out in the affirmation,

(a)  Ground (1)  is a reference to what was stated in [1] of the Judge’s decision dated 14 July 2021 refusing to extend the time for appeal.  It is accepted that the Judge made a mistake as the applicant did not enter Hong Kong illegally. However, this is not the decision that the applicant is seeking to appeal.  His intended appeal is against the Judge’s decision given in the Form CALL-1 dated 5 August 2020.  At [4] of that decision, the Judge correctly stated that the applicant “came to Hong Kong on the strength of a visa.  But he overstayed since 24 February 2018.”  The mistake that the Judge made in the 14 July 2021 decision does not impact on the soundness of the 5 August 2020 decision refusing leave to apply for judicial review.

(b)  Ground (2)  stems from the applicant’s misunderstanding of the reasons of the Board. As mentioned in [8] above, the Board considered that the applicant had ample opportunity to make a non-refoulement claim since he first came to Hong Kong in July 2017.  The eight-month period was a reference to the time between the applicant’s first visit to Hong Kong (July 2017)  to the time he made his non-refoulement claim (March 2018).  The Board was entitled to take into account the fact that the applicant did not raise a non-refoulement claim on his first entry into Hong Kong, in light of his claim that he has had grave fears since April 2017.  That said, we do not share the Board’s views that because the applicant had overstayed and had a conviction for theft (without any information as to the facts underlying it), he has a dishonest character.

(c)  Ground (3)  is just a general assertion with no details or particulars. 

(2)  As to the written submission,

(a)  It was not shown how the cases cited and the legal propositions quoted in the written submission relate to the applicant’s case. 

(b)  No particulars have been given for the assertion that the Board acted in a procedurally unfair way in assessing the applicant’s credibility.  Although we do not necessarily concern in all the reasons given by the Board in assessing the applicant’s credibility, that does not give rise to procedural unfairness.

(c)  The reference to section 37ZT(2)  of the Immigration Ordinance is irrelevant as the applicant was not late in his appeal to the Board.  

21.  We have in any event examined the Board’s decision.  We note that the Board’s assessment of the claim on the applicable grounds was on the basis of the facts as stated by the applicant.  We discern no error of law, irrationality or procedural irregularity in the Board’s finding that the applicant’s claim did not satisfy the requirements of the applicable grounds.  The Judge did not err in finding the intended judicial review has no reasonable prospect of success and refusing to give leave to apply for judicial review.

22.  As the applicant’s intended appeal against the Judge’s refusal of leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 10 September 2021