RE SIDIBE HAROUNA

CAMP 180/2019

[2021] HKCA 742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 180 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 451 OF 2017)

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J U D G M E N T

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The Court:

1.  This is the applicant’s application for extension of time for leave to appeal against the decision of Deputy High Court Judge Woodcock given on 24 November 2017 refusing to grant an extension of time for his application for leave for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 31 March 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 31 August 2015 and 24 October 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Mali. He entered Hong Kong on 27 June 2011 as a visitor and was permitted to remain until 27 July 2011.  He overstayed and was arrested on 6 March 2012.  He lodged a non-refoulement claim on 9 March 2012. 

3.  The applicant’s claim was based on threats from a spiritual being known as the Oracle.  The details of the applicant’s claim have been summarised by the judge at [1] of the CALL-1 Form.

4.  By a Notice of Decision dated 31 August 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 24 October 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 11 November 2016, the Board dismissed the appeal on 31 March 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [15] – [17] of the Board’s Decision, the Board found that there is nothing to suggest that the applicant will be subject to any harm from the spiritual being known as the Oracle.

The Judge’s decision

8.  The applicant filed a Form 86 on 25 July 2017 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 25 July 2017, the applicant deposed that before he came to Hong Kong, he attempted to flee the Oracle by moving to Nigeria but the Oracle continued to haunt him.  He fears that he will be killed by the Oracle and that the only way to be safe is by staying outside of Africa.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to extend time for applying for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [5] to [7] of the CALL-1 Form:

“5. As the applicant was in person and present at an oral hearing, I took the opportunity to ask if he had any grounds to put forward to support his application for leave. His affirmation filed did not reveal any grounds. He had only summarised his claim in his short affirmation. His answer rather surprisingly was that he filed this application because he was told it was the last thing he could do as his appeal had been dismissed and his case/claim was over. I explained what a judicial review was and asked again if he had any grounds to put forward to support his application and he confirmed he had no grounds.

6. The applicant’s application was out of time. I considered the length of the delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance. There was no good explanation for the delay as it was the applicant’s responsibility for informing the TCAB of any new address. On his own admission he has no grounds to seek leave to judicial review the TCAB decision; there certainly are no questions of general public importance that arise here. Therefore, his application for an extension of time to file his Form 86 is refused.

7. In any event, despite that and despite there being no grounds to this application I have considered the decision of the adjudicator.  I saw no errors of law, no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test. I would have refused leave to apply for judicial review even if the application was filed within the prescribed time limit.”

Application for extension of time for leave to appeal

11.  The applicant was required to seek leave to appeal within 14 days, he failed to do so.  By a summons dated 3 September 2018, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Josiah Lam on 19 June 2019.

12.  By a summons dated 1 August 2019, the applicant renewed his application for an extension of time for leave to appeal before this court.  In the summons he stated that it is unsafe for him to return because the Oracle will kill him.  In the affirmation filed on the same day, he repeated the same.

13.  In his written submissions dated 16 August 2019, the applicant submitted that:

(1) The applicant has lost all members of his family;

(2) The applicant has been subject to torture and CIDTP for his refusal to serve the Oracle; and

(3) Mali has no human right and will not protect him.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

15.  As is apparent from the CALL-1 Form, while noting that the delay was substantial and did not appear to her to be excusable, the judge refused to grant an extension of time because of the lack of merit in the proposed judicial review.  Although it has now been held by the Court of Final Appeal that leave to appeal is not required in cases where an extension of time for leave to bring judicial review proceedings is refused, in the present case, any appeal would also have been well out of time and leave to appeal would have been required in any event. 

16.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the application for leave to appeal.  We nonetheless go on to consider the merits of his intended appeal.

17.  The bare assertion by the applicant that it is unsafe for him to return to Mali because he will be harmed by a spiritual being is not in itself a valid ground for seeking leave for judicial review or a valid ground of appeal.  In any event, the Board has dismissed this assertion and the applicant has not identified any public law error in the Board’s Decision.

18.  We therefore do not see any prospect of success in the intended appeal.  We will not grant an extension of time for a hopeless appeal.  The summons of 1 August 2019 is dismissed accordingly.

19.  We are also of the view that the application is totally without merit.  Pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.