GASSAMA BAKARY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 331 /2021

[2022] HKCA 315

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 331 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1759 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 24 June 2020, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 22 April 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by Deputy High Court Judge P Li as there is no merit in the intended judicial review[2].

3.  On 10 August 2021, the applicant filed the present summons with the Court of Appeal indicating that he wants to challenge the decision. The decision dated 22 April 2021 was exhibited to his supporting affirmation. This application should be treated as a renewed application for leave to appeal out of time against the decision of DHCJ K W Lung dated 24 June 2020: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4.  The applicant is a national of Gambia. He is 28 years old. He came to Hong Kong as a visitor on 13 August 2014 and subsequently overstayed. He surrendered to the Immigration Department on 13 November 2014 and lodged a non-refoulement claim on 12 December 2014. His claim was made on the basis that he will be harmed or killed by the officers of the National Intelligence Agency (“NIA”) if he returns to Gambia because of his previous participation in the delivery of some top secret information and confidential country information.

5.  By a Notice of Decision dated 4 July 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision to the Board and requested the Board to consider his claim without any oral hearing. The Board therefore considered the appeal on paper. The Board held that the applicant’s evidence could not be relied upon to prove the primary facts of his claim as his assertions are either lacking in detailed information, contradictory to the documentary evidence, or lacking of evidence in support. The Board found there was a drastic reform in the NIA since the change of government after the 2016 presidential election in Gambia. After considering the available materials including some news report and article, the Board held that the change in the Gambian government had made it less likely that the applicant would face risk of being tortured and that it would be unlikely that he would be arrested or killed by the NIA or other agents under the former president as claimed in view of the reform at the State Intelligence Services. The Board decided that the applicant failed to show that the feared risk is likely to materialize. It further considered that reasonable state protection and internal relocation alternatives would be available to the applicant in Gambia. Thus, the Board decided that the applicant failed to establish his non-refoulement claim on any of the applicable grounds and dismissed the appeal on 16 August 2018.

The judge’s decision

7.  On 10 July 2018, the applicant filed a Form 86 and supporting affirmation to apply for leave to bring judicial review against the decision of the Director. Leave was granted by DHCJ K W Lung for the applicant to amend Form 86 to the effect that the Board is the proposed respondent and the Director is the interested party. The applicant only stated that the decision is unfair and unreasonable in his supporting affirmation, without stating specific grounds for his intended challenge.

8.  The applicant attended the hearing before DHCJ K W Lung on 10 October 2019. He applied for adjournment of the hearing for him to apply for legal aid. The judge refused the application for adjournment as the judge found the applicant’s explanation for the delay in taking out legal aid application not justifiable. The judge considered that the applicant failed to show any reasonable prospect of success in his intended judicial review and dismissed the leave application on 24 June 2020.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in his summons or affirmation.

Analysis and disposition

10.  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.

11.  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 judge’s order was made on 24 June 2020. The applicant took out summons in the court below on 26 August 2020. He was late for 3 weeks, exclusive of the court’s summer vacation in August. He explained in his affirmation filed with the Court of Appeal on 10 August 2021 that he did not get the letter from the High Court as he changed his home address.

12.  On 24 June 2020, the decision of DHCJ K W Lung was sent by post to the applicant’s last known address which was provided to the court by the Immigration Department. The applicant had previously confirmed before the judge that he had received the notice of hearing at this address. 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 or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). As the applicant did not file a notice of change of address with the court, his delay is not justifiable. In these circumstances, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

13.  In assessing the merit of the intended appeal, the court 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.

14.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  In the present application, the applicant has not put forward any grounds against the judge’s decision in refusing to grant leave. He failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We therefore refuse to extend time to appeal against the judge’s decision on 24 June 2020 and dismiss the applicant’s summons filed on 10 August 2021.