DOUZAN BI TOMMY ODILON ISMAEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 130/2020

[2021] HKCA 1392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 130 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 2994 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  On 20 December 2019, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to seek judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 10 January 2020, the applicant filed a summons for leave to appeal out of time against that decision as the time for filing his appeal ended on 3 January 2020.  The applicant’s summons was dismissed by DHCJ Lung on 19 June 2020[2].

3.  On 12 August 2020, the applicant filed the present application with the Court of Appeal seeking to challenge the decision dated 19 June 2020.  This summons should be treated as a renewed application for leave to appeal out of time against the judge's decision of 20 December 2019: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.  The applicant has not lodged written submissions as directed by the Registrar of Civil Appeals.

4.  The applicant is a national of Côte d’Ivoire. He is 26 years old.  He arrived in Hong Kong on 30 December 2013 as a visitor and subsequently overstayed.  He surrendered to the Immigration Department on 21 January 2014 and lodged a non-refoulement claim on 6 March 2014.  His claim was made on the basis that he will be harmed or killed by Abou, his family and his associates as they blamed him for the death of Abiba, Abou’s sister and he also fears that he will be harmed by a group of terrorists called Les microbes (“the microbes”) upon his return to his country.

The Director’s decisions

5.  By a Notice of Decision dated 30 September 2015, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6.  By a Notice of Further Decision dated 22 February 2017, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non‑refoulement claim.

The Board’s decision

7.  The applicant appealed against the Director’s decisions to the Board.  He attended the hearing before the Board on 20 March and 12 April 2017.  The Board considered that the feared ill-treatment stemmed from a private dispute and is unlikely to materialize as the applicant has not received any physical harm or direct threat from Abou’s family and Abou’s family had not even attended his house to locate him since the day following Abiba’s death.  The Board further held that there is nothing to substantiate his assertion concerning the microbes as he did not refer to this in the non-refoulement claim form and had no personal encounter with the microbes. The Board also assessed that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk. Therefore, the Board dismissed the appeal on 6 August 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 24 December 2018 for leave to apply for judicial review against the decisions of the Director and the Board, after the expiry of the three-month period for applying for leave to bring judicial review.  He put forward the following grounds for his intended challenge:

(1)  The applicant believes that the Director and the Board reached their decisions wrongly in assessing his claim.  The decisions were unreasonable and unfair;

(2)  The Board failed to give the applicant sufficient time and chance to arrange relevant evidence to support his claim as well as his appeal; 

(3)  Various human rights organizations have compiled reports on the matter which can be testament of the applicant’s assertions. The Director failed to attain the high standard of fairness in the decision.

The judge’s decision

9.  The applicant attended the hearing before DHCJ Lung on 14 June 2019.  The judge considered that the applicant has not set out any exceptional circumstances which could make him entitled to apply for judicial review of the Director’s decisions after he has appealed to the Board as the decision by the Board has superseded the Director’s decisions.  The judge followed the case of Re Moshsin Ali [2018] HKCA 549 and dismissed the application for leave to apply for judicial review of the Director’s decisions.

10.  As for the application concerning the Board’s decision, the judge held that the applicant has no evidence to support his assertion that the Board reached a wrong decision.  The judge also rejected the applicant’s complaint that the Board failed to give sufficient time and chance for him to arrange relevant evidence as he was unable to identify what evidence he intended to adduce for the Board’s consideration.

11.  The judge therefore refused to grant extension of time and dismissed the leave application on 20 December 2019.

Grounds of intended appeal

12.  In the present application, the applicant did not state any grounds of appeal in his summons or affirmation.

Analysis and disposition

13.  In considering whether to extend time for appealing 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 the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14.  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 20 December 2019.  The applicant took out a summons for leave to appeal out of time at the court below on 10 January 2020.  He was late by seven days.

15.  The applicant explained in his supporting affirmation filed with the court below he was late as he did not have money and it was difficult for him to find money to pay for the court fee.  Even if the court is minded to accept his explanation in view of the short delay in the present case, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

16.  The general principles regarding an appeal in a non‑refoulement case 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.  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 has not put forward any ground to reverse the judge’s decision.  The applicant failed to show any prospect of success in his intended appeal. 

19.  For the above reasons, we decline to exercise our discretion to grant leave to appeal against the judge’s decision of 20 December 2019 out of time and dismiss the summons filed on 12 August 2020.