RE KAMBAY LAMIN

HCAL 2579/2018

[2021] HKCFI 1774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2579 OF 2018

________________________

________________________

________________________

D E C I S I O N

________________________

1.  The applicant is a Gambian[1]. He came to Hong Kong on 31/10/2014 as a visitor. He overstayed until 4/2/2015 when he surrendered to the Immigration Department.[2] He filed this non-refoulement claim on 4/2/2015 and 17/3/2016.[3]

2.  The non-refoulement claim was dismissed by the Director on 25/7/2018.  The applicant appealed to the TCAB.  The adjudicator dismissed his appeal on 13/11/2018.

3.  On 16/11/2018, the applicant applied for leave for judicial review.  He disagreed with the Director and the TCAB.  In gist, he pointed out that the decisions of the Director and the TCAB were Wednesbury unreasonable.  The TCAB had not given him sufficient time to prepare.  The Director had not considered State acquiescence.

4.  Deputy Judge Lung fixed a hearing on 25/9/2019.[4]  The applicant was absent.  The notice of hearing by ordinary mail was not returned.[5]  The Judge proceeded to deal with the leave application on paper.  The Judge pointed out that the decision of the TCAB would supersede that of the Director.  In leave application, the court would concentrate on the former.[6]  The Judge found that, according to the TCAB, the applicant failed to establish the facts in support of the claim.[7]  The Judge refused leave on 29/7/2020.

5.  The applicant filed a summons on 27/10/2020 for extension of time to appeal against the decision of Deputy Judge Lung.  He was about 2½ months out of time.  He did not explain the delay in his Summons.

6.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this 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.[8]

7.  The applicant was out of time for 2½ months.  This was a substantial delay.  There was no explanation.  In this regard, I notice that the address on the summons filed on 27/10/2020 was the same as that on the notice of hearing dated 6/8/2019.  It was the same address according to the record of the Immigration Department.  There was no indication that there was any problem with the mail.

8.  In an application for extension of time to appeal, the paramount importance is the merit of the intended judicial review[9].

9.  According to the applicant, he was afraid that he might be harmed or killed by the UDP[10] if he returned to Gambia.

10.  The applicant alleged that one day in 2013, his father’s best friend informed him by phone that his parents and siblings were murdered by members of the UDP.  At the time of the incident, he happened to stay overnight at his grandmother’s home.  His father was murdered because of his stance against corruption within the UDP.  He did not report to the police as they were corrupt.  He decided to flee Gambia for his safety.

11.  The adjudicator stressed that the evidence of the killing was based on hearsay.  There was no evidence on the circumstances of the killing.  There was no news report and no police investigation.  There was no evidence that the killers were from the UDP.  There was no evidence that the appellant was ever targeted by the UDP while in Gambia.  He was able to leave the country freely.  Recent COI indicated that there was a newly elected government which had taken action against corruption and abuse of human rights.

12.  The TCAB concluded that there was no ‘torture’ or ill-treatment amounting to ‘a minimum level of severity’.  The TCAB was satisfied that there were reasonable options for relocation.  The TCAB rejected the appeal and confirmed the decision of the Director. [11]

13.  I agree with the decision of Deputy Judge Lung and the TCAB.  The applicant failed to establish the basic facts of his claim.

14.  Given that there is no merit in the intended judicial review, coupled with no explanation for the delay, I refuse his application for extension of time to appeal.