RE ALKASSOUM MOUSSA ALFAROUK

CAMP 503/2021

[2022] HKCA 476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 503 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1493 OF 2018)

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J U D G M E N T

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

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge CP Pang (“DHCJ Pang”) dated 18 November 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 2831). An earlier application for extension of time to appeal was refused by Deputy Judge Suffiad (“DHCJ Suffiad”) on 26 October 2021 (“the EOT Decision”) ([2021] HKCFI 3090).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 22 June 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 3 March 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Niger. He last arrived in Hong Kong on 14 July 2015 as a visitor and was permitted to remain until 28 July 2015. He did not depart and overstayed since 29 July 2015. On 14 December 2015, he surrendered to the Immigration Department and lodged a non-refoulement on 28 December 2015 on the basis that he would be killed or harmed by his uncle in Niger owing to a land dispute. Details of the applicant’s claim were summarised by DHCJ Pang at [2] - [3] of the Leave Decision.

5.  By a Notice of Decision dated 3 March 2017, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

6.  The applicant then appealed against the Director’s Decision to the Board. He attended and gave evidence at an oral hearing before the Board on 13 April 2018. The Board dismissed his appeal on 22 June 2018 and confirmed the Director’s Decision. Having assessed the evidence, the Board had considerable doubt of the applicant’s claim and attached no credence to his claim that he had problems in a land dispute with his uncle in Niger. The Board also found that internal relocation would be available to the applicant. The Board considered that the applicant failed to substantiate his case on all applicable grounds and accordingly dismissed his appeal.

The Leave Decision

7.  On 27 July 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision. However, no ground of review was provided by the applicant in his Form 86. In his supporting affirmation, he only stated that his life was in danger and he could not go back to his origin country. As no request for oral hearing was made by the applicant, DHCJ Pang considered his application on paper.

8.  By the Leave Decision, DHCJ Pang dismissed his application for leave to apply for judicial review for the following reasons:

“12. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

13. When the Applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

14. In the present case, the Board in fact rejected the Applicant’s appeal/ petition on the ground that it attached no credence at all to his claim based on the illogicality of his claim. In any event, it found that internal relocation is a reasonable and viable option to the Applicant. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

15. As explained above, the assessments of evidence, risk of harm and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16. The Applicant stated no grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.

17. In the absence of any error of law or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

18. I also agree with the Board that the Applicant’s conduct by his delay in lodging the claim for protection was inconsistent with someone in genuine fear for his life and safety. It could be taken into account as damaging the Applicant’s credibility.

19. Further, even if one gives his account the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.

20. The evidence can hardly establish that the Applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

21. Both the Director and the Board engaged in a joint endeavour with the Applicant and considered all relevant criteria. They gave the Applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

22. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

23. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

24. For the reasons given, there is no prospect of success in the Applicant’s intended application for judicial review.

Disposition

25. Accordingly, leave to apply for judicial review is refused.”

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.

10.  On 29 July 2021, the applicant filed a summons (“EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision. By then, he was nearly eight months late with his intended appeal. In the EOT Summons and his supporting affirmation, he only stated that he did not receive the Leave Decision within reasonable time.

11.  By the EOT Decision, DHCJ Suffiad noted that a delay of nearly eight months was significant and although the Leave Decision was returned to the High Court as undelivered post, the applicant failed to put forward any proper or valid draft or proposed grounds of appeal or alluded to any error in the Leave Decision. As such, it would be futile to extend time for a hopeless appeal and his application for extension of time to appeal was refused.

The Present Application

12.  By a summons and supporting affirmation both filed on 8 November 2021, the applicant applied for leave to appeal against the EOT Decision. In his summons and supporting affirmation, he only repeated that he failed to receive the Leave Decision by post.

13.  Pursuant to the directions given by the Registrar of Civil Appeals on 8 November 2021, the applicant lodged his written submissions on 22 November 2021. In his submissions, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim. He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility. He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably. He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which related to the late filing of notice of appeal to the Board but failed to point out its relevance to his case. It is also noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  We consider that the applicant’s delay of nearly eight months is very substantial. Although the applicant alleged that he failed to receive the Leave Decision and the same was returned to the High Court as undelivered post, 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 occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: see Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].

16.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

17.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any error in the Leave Decision with specific particulars. As such, no viable ground of appeal was given by the applicant. The intended appeal must fail on this basis alone.

19.  Further, the arguments raised in his written submissions are new arguments not raised in the Court below. It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15]. Accordingly, we refuse to entertain those new arguments. In any event, the applicant’s contentions are all general and bare assertions without any specific particulars or evidence in support. They do not constitute proper grounds of appeal.

20.  For the above reasons, the intended appeal has no prospect of success. It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons dated 8 November 2021 dismissed.