RE MUNATSI KINGSLEY

CAMP 63/2019

[2019] HKCA 760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 63OF 2019

(ON AN INTENDED APPEAL FROM HCAL 925/2017)

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JUDGMENT

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

Introduction

1.  On 29 November 2018, Campbell-Moffat J (“the Judge”) refused to grant an extension of time for the applicant to apply for leave for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 7 July 2017 upholding the decisions of the Director of Immigration (“the Director”) that his claim for non-refoulement protection in Hong Kong should be rejected.

2.  The applicant failed to apply to the court for leave to appeal against the said decision within the 14-day statutory time limit.  He only did so on 30 January 2019.  After the Judge dismissed his application for leave to appeal out of time on 2 April 2019, the applicant took out the present summons on 12 April 2019.

Background

3.  The applicant is a national of Botswana.  He entered Hong Kong on 23 June 2008 and was permitted to remain as a visitor until 21 September 2008.  He did not depart upon the expiry of his limit of stay.  He was arrested by the police on 12 April 2014 for overstaying.  He was found guilty of the offence for breach of stay condition by overstaying, was sentenced to six-month imprisonment.  After his release from prison, he lodged his non-refoulement claim on 12 August 2014.

4.  The applicant’s claim is based on the fear that he would be harmed or killed by his business partners because he lost some of the goods he purchased for a joint venture with them. He also said they demanded him to join the Al-Shabaab (an extreme terrorist group in Africa) as a suicide bomber or militant. 

5.  By two notices of decision dated 26 April 2016 and 27 April 2017, the Director assessed the applicant’s claim on all applicable grounds and decided them against the applicant.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3], and the latter covered the BOR 2 risk[4].

6.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 10 May 2017, during which the applicant gave evidence.  After hearing the applicant, the Board did not find him nor his case to be credible.  There were serious inconsistent differences between the account provided in his Non-refoulement Claim Form and his oral evidence given during the hearing. The Board found no credible evidence that the applicant would be subjected to any risk of harms if he returned to Botswana.  The Board dismissed his appeal/petition on 7 July 2017.

The Judge’s decisions

7.  On 21 November 2017, i.e., 4 and a half months after the Board’s decision, the applicant sought leave from the court to apply for judicial review.  The applicant did not set forth any grounds for seeking reliefs in his Form 86.  In his affidavit in support of the application, he asserted that his life would be in danger if he returned back to his home country and claimed that the Board’s decision was not fair because his life was in danger.  He also mentioned without giving any particulars that he was recently attacked by some people.

8.  The applicant did not request for an oral hearing for his application, and the Judge processed it on the papers.  After considering the legal principles for granting an extension of time, the Judge refused to do so.  Her reasons were set out in [4] of the Form CALL-1 as follows:

“ In this case the Applicant was late by 45 days and has not offered any explanation for this delay. In view of that he must satisfy the Court that there are real prospects of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted. There is no reason at all before the Court as to why an extension of time for leave to apply for judicial review should be given. The Applicant’s claim as explained above is not reasonably arguable and does not have a realistic prospect of success.”

9.  On 30 January 2019, the applicant took out a summons for leave to appeal against the Judge’s decision out of time.  It was stated in the summons that his life would still be in danger if he was refouled. He asserted that he was legally married in Hong Kong and could not leave his wife behind.  He also claimed that he was kidnapped in Hong Kong in September 2017.

10.  In his supporting affidavit of 30 January 2019, the applicant produced a copy of his marriage certificate (showing he was married to a local person on 24 February 2018), He also wrote a letter addressed to Judge explaining the reasons for delay in applying for leave to seek judicial review.  In the letter, the applicant blamed the Legal Aid Department for the delay. He further claimed that he was attacked, tortured, and kidnapped by some unknown people in Wanchai on 23 September 2017. 

11.  The Judge held an oral hearing on 2 April 2019. After hearing the applicant, the Judge refused to grant leave for him to appeal out of time and dismissed the summons.  Her reasons for the dismissal were set out in [6] – [7] of her decision given on the date of the hearing ([2019] HKCFI 884) as follows:

“ 6. The applicant has now been in Hong Kong since 2008. He has been interacting with various government agencies since 2014 when he was first apprehended by the police. I do not accept that he was ignorant of the fact that he needed to submit his Form 86 timeously. He knew he was late in submitting the Form 86 and did not supply any explanation for that at the time which would have enabled the court to consider an application to extend time favourably during the leave process. He has no complaint about the way this court handled that application. His complaint is based upon his dissatisfaction over the original claim for asylum.

7. I have considered his underlying application.  It has no merit.  There were no grounds of review other than that the decision of the Adjudicator was unfair and unreasonable.  There was no complaint before the court as to the decision to refuse an extension of time for leave.  There were no grounds of appeal. The applicant merely wishes the Court of Appeal to consider his situation afresh.  Having considered the length of delay, reason for the delay and underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.”

The present application

12.  The applicant took out the present summons on 12 April 2019. We treat it as a renewed application for leave to appeal against the refusal of extension of time.

13.  The applicant also filed a supporting affidavit of 11 April 2019 exhibiting a letter to the Judge and a letter from the Legal Aid Department rejecting his legal aid application on 13 November 2017.  In it, the applicant stated that:

(1) the delay was not intentional;

(2) the applicant was not conversant with the Hong Kong legal system;

(3) the delay was due to “misinformation” on the part of the Legal Aid Department;

(4) the Judge’s decision of 2 April 2019 was not fair and reasonable; and

(5) his life was in danger because of the recent incident of his kidnap in Hong Kong. 

14.  Instead of lodging written submissions as directed by the Registrar of Civil Appeals, the applicant filed another set of affidavit on 2 May 2019.  Apart from reiterating that his life was in danger and the Board’s decision was not fair and reasonable, the applicant exhibited a number of documents to the affidavit. Among these exhibits were two letters addressed to the Registrar of Civil Appeals marked as “Exhibit A” and “Exhibit B”.

15.  In “Exhibit A”, the applicant stated that:

(1) He approached the Judiciary for filing a Form 86 on 20 July 2017. When he told the receptionist of the High Court Registry that he was not legally represented, he was referred to the Legal Aid Department.  He then applied for legal aid on the same date.

(2) He said he was under the wrong impression that he had filed the Form 86 by making his application for legal aid.

(3) He received a letter on 13 November 2017 informing him that his legal aid application was rejected.  By then, the 3-month time limit for applying leave for judicial review had already expired. 

(4) He also criticized the Legal Aid Department for the prolonged application process, causing him delay in making the leave application.

16.  In “Exhibit B”, the applicant stated:

(1) It was not fair for the Judge to reject his application due to his ignorance of the legal system in Hong Kong. The Judge failed to pay sufficient attention to the recent kidnapping incident.

(2) The decision of the Director was not fair because it was made within a short time interval between the lodgment of his claim and the delivery of the decision.  The decision of the Board was also unfair because of the short time interval between the oral hearing and the delivery of the decision.

(3) It was not fair for the Board to reject his claim for non-refoulement protection because his life was in danger as he was attacked by a group of unknown people on 23 September 2017.  Because of such an incident, he suffered mental distress and depression.

(4) He also claimed that he had found out that his business partners were now active members of ISIS and they were still pursuing him in Hong Kong.

(5) The Judge made her decision refusing an extension of time on the same date of the hearing without regard to the danger he faced if returned to his home country.

(6) Because the dispute between him and his business partners was private in nature, no one in his home country would help him.  The police in his own country would not involve in this kind of dispute.

(7) He was married in Hong Kong.  It would not be humane to separate him from his wife.

(8) He would like to have his claim revisited.

Legal principles

17.  Pursuant to Order 59, Rule 2B(1) of the Rules of the High Court (Cap 4A), any application for leave to appeal against an interlocutory judgment or order may only be made to the court in the first instance within 14 days of the date of the judgment or order.  In the present case, the time for applying for leave to appeal expired on 13 December 2018.  The applicant was late by 6 weeks in making the application before the Judge when he made the application on 30 January 2019. That delay had nothing to do with his legal aid application which had already been rejected on 13 November 2018.

18.  In considering whether to extend time for leave to appeal against an interlocutory decision, 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.

19.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would 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.  The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge.

20.  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) It follows from the above that in an appeal, the scope for new arguments to be run is limited.  This Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4) 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

21.  We do not accept that the counter staff of the Judiciary would decline to accept his filing of Form 86 if he had put forward the same within time. We have handled hundreds of similar applications lodged by litigants in person. On the other hand, if the applicant only came to the counter seeking legal assistance, it would not be wrong for the counter staff to refer him to the Legal Aid Department.

22.  As we have mentioned earlier, the applicant was late for 6 weeks in applying for leave to appeal against the refusal to extend time.  In our view, the length of that delay was substantial.  In this respect, the applicant cannot blame the Legal Aid Department for the delay between the decision of the Judge on 13 December 2018 and his summons of 30 January 2019.  

23.  Further, in our view, the applicant’s intended appeal does not have a reasonable prospect of success. The Board rejected the applicant’s claim for non-refoulement protection due to its adverse finding on the applicant’s credibility.  The time taken for the processing of his application by the Board and the Director cannot give rise to a valid basis for challenging the same as long as sound reasons were given by the decision-maker.

24.  As stated in the authorities, the finding on credibility and the evaluation of the risk of harm are within the province of the Board.  The court will not intervene by way of a judicial review unless the applicant can demonstrate that these findings should be reversed on the public law grounds. 

25.  The applicant’s claim of recent attack was not evidence before the Board. Further, there is no evidence to link such attack with the business partners of the applicant. We cannot accept that the alleged attack is evidence of risk of harm to the applicant if he returns to his home country. In any event, this is not a matter for us to evaluate. If the applicant has evidence linking the attack of 23 September 2018 with his business partners, he could consider making an application under Section 37ZO(2) of the Immigration Ordinance (Cap 115).

26.  The applicant’s marriage has no relevance to his non-refoulement claims and thus cannot assist him in the application for judicial review against the Board’s decision.

27.  In this application, the applicant fails to advance any viable ground to reverse the Judge’s decision dated 29 November 2018.  In such circumstance, we dismiss the applicant’s summons filed on 12 April 2019.

28.  We also direct that, pursuant to Order 59 rule 2A(8) of the Rules of the High Court, the applicant may not apply for an oral hearing to reconsider his application.