AGAMA GEORGE HINNEH v. TORTURE CLAIMS APPEAL BOARD

CAMP 86/2018

[2018] HKCA 791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 86 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 257 OF 2017)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)   Extension of time to appeal

1.   Deputy High Court Judge (‘DHCJ’) Bruno Chan on 20 April 2018 refused to grant the applicant leave to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) dated 8 May 2017.  The applicant now applied for extension of time to appeal against the decision of DHCJ Bruno Chan.  The application was filed on 14 June 2018, with accompanying supporting affidavit and written submissions lodged subsequently on 2 August 2018.  Pursuant to directions of the Registrar of Civil Appeals dated 19 June 2018, this Court will now deal with the application on paper.

2)   Factual background

2.1   The applicant is a national of Ghana who arrived in Hong Kong from Mainland China on 13 November 2005.  He remained in Hong Kong and overstayed since 28 November 2005.  He surrendered to the Immigration Department on 10 December 2007.  He raised his torture claim on the same day, on the basis that if he was to return to Ghana, he would be harmed or killed by his late father’s unspecified Muslim neighbours (‘MN’) because he heard that his father had a dispute with the MN as to the boundary of farmland in Mempeasem village (‘Village’) in west Ghana.  The applicant did not raise any torture claim at many earlier opportunities upon arriving in Mainland China or Hong Kong.

2.2   The applicant was born and raised in Ghana.  He is Christian.  He was a professional football player.

2.3   In September 2005, the applicant was told by a friend something bad had happened in his village.  He called his mother and she told him that his father was killed by MN over a land boundary dispute.  His mother told him not to return home as MN was looking for him, and that he should leave Ghana.  The applicant, however, was never confronted by MN.  The applicant hence left Ghana for Mainland China before coming to Hong Kong on 13 November 2005.  His mother told him that one of his sisters had been killed by the MN over another dispute.  The applicant applied for refugee status in the United Nations High Commissioner for Refugees (‘UNHCR’). He then lodged his torture claim on 10 December 2007.  He completed his NCF form on 29 July 2014 with legal assistance of the Duty Lawyer Service.

3)   The Director’s Decision and the Director’s Further Decision

3.1  The Director decided against the applicant’s torture claim on 4 June 2015.  The decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2  By a Further Decision of the Director dated 20 October 2016, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant, and decided against the applicant.

4)  The Board’s Decision

4.  The applicant appealed against the Director’s Decision to the Board on 17 June 2015.  The oral hearing was conducted on 3 November 2016.  The Board dismissed the applicant’s appeal on 8 May 2017.

5)  Decision of DHCJ Bruno Chan

5.  DHCJ Bruno Chan considered the applicant’s application for leave for judicial review, and found that neither the Form 86 nor the supporting affidavit contained any particulars or grounds for judicial review, save for a short description that the applicant wished to review the Board’s Decision.  The enclosures of his supporting affidavit consisted of the hearing bundle used before the Board.  The Judge applied TK v Jenkins [2013] 1 HKC 526 and held that the Court does not look at the merits of the Board’s Decision, as it only plays a supervisory role in the applicant’s intended judicial review.  In any event, the Judge considered the Director’s decisions and the Board’s Decision with rigorous examination and anxious scrutiny, and did not find any error of law or procedural unfairness in those decisions, or any failure to apply high standards of fairness in the applicant’s claim, or that those decisions were Wednesbury unreasonable.  The applicant’s application for leave for judicial review was refused.

6)  The present application

6.1  The applicant’s summons of 14 June 2018 states in gist :

‘ … I appeal on the grounds that my Repatriation to my country will mean the end of my life.  I appeal to the court to save me…’  (‘end of life argument’)

6.2  The content of the applicant’s supporting affidavit contains similar wordings :

‘ .... I believe that my Repatriation to my country will mean the end of my life.  I appeal to the court to save me.  I did not know the date this was sent.  It was given by my immigration officer in Tuen Mun…’  (‘delay argument’)

6.3  The content of the applicant’s written submission lodged on 2 August 2018 contains similar wordings as the end of life argument.

7)  Legal principles

7.  In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134;and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

(4)  Prejudice to the putative respondent if extension of time was granted.

8)  Analysis

(1)     Length of delay and reasons for the delay

8.1  The original deadline for the applicant to lodge his application to appeal against the decision of DHCJ Bruno Chan was 4 May 2018, being 14 days from 20 April 2018, see Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A.  The applicant made his application on 14 June 2018, which was more than one month of delay.  The delay was not insubstantial.

8.2  The applicant’s delay argument of not knowing which day the Court sent the decision of DHCJ Bruno Chan to him, or that it was given to him in Tuen Mun from his immigration officer is a bare allegation unsupported by any evidence.  DHCJ Bruno Chan’s decision was sent by post to the address provided by the applicant on 20 April 2018.  This argument does not constitute a satisfactory explanation for the delay.

(2)    End of life argument

8.3  As for the applicant’s end of life argument, again, it is a bare allegation unsupported by any further submission or evidence.

8.4  In any event, both the Director and the Board had already considered the applicant’s end of life argument and were not satisfied that he would face real risks of harm if refouled to Ghana.

8.5  There are no merits in the end of life argument.  This ground is not reasonably arguable.

8.6  We have said many times before, evaluation of risk of harm (or in this case, the end of life argument) is primarily a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The Court will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment of the Board in the hope that the Court may consider the matter afresh in the absence of any legal error.  See: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

9)  Disposition

9.1  For the reasons as aforesaid, there is no error of law or procedure in the proceedings before the Board or the Judge, and there is no reasonably arguable basis to challenge the fairness of the process.  DHCJ Bruno Chan was correct to hold that leave to apply for judicial review should not be granted.

9.2  There is no merit in the intended appeal against DHCJ Bruno Chan’s decision.  It will be futile to grant extension of time to appeal.  The application is dismissed.

9.3  Since the application is totally without merit, we further made an order under Order 59, rule 2A(8) of the Rules of the High Court that the applicant may not request for determination to be reconsidered at an oral hearing.