RE MANNEH FAKEBBA

CAMP 278/2022

[2022] HKCA 1382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 278 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1083 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 31 May 2022[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 12 April 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 30 April 2018 rejecting the applicant’s non-refoulement claim.

2.  On 27 July 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is a national of Gambia, born in 1985. He came to Hong Kong as a visitor in September 2014 but had overstayed since 23 December 2014. On 2 January 2015 he surrendered to the Immigration Department. He lodged a non-refoulement claim by written representation on 27 February 2015 and subsequently submitted a non-refoulement claim form dated 22 March 2018 with legal assistance.

4.  The applicant’s claim was based on the fear that if he returned to Gambia, he would be harmed or killed by his uncle as he had not been able to repay a loan of US $25,000 borrowed from the uncle for the applicant’s garment business. The factual background of his claim was set out at [15] of the Board’s decision.

5.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6] By notice of decision dated 30 April 2018 the Director decided against the applicant’s claim.

6.  The applicant appealed to the Board against the decision of the Director. The Board held a hearing on 29 January 2019, at which the applicant gave evidence and answered the Board’s questions. The Board discussed with the applicant throughout the hearing that various aspects of his evidence “impressed the board as problematic, inexplicably vague and unconvincing, casting doubt on truth of central aspects of his claims, including his claims that he ever borrowed US$25,000 from anyone in Gambia”. In the end, the Board considered there remained multiple significant anomalies in the applicant’s evidence. The Board did not accept that the applicant had ever borrowed US$25,000 from anyone in Gambia including his uncle, or that he had ever been harmed or targeted for harm in connection with such a loan, or that he faced a real chance of being so targeted or harmed in Gambia. Accordingly, the Board found that the applicant’s claim was not substantiated, and dismissed his appeal in its decision dated 12 April 2019.

The Judge’s decisions in the court below

7.  On 23 April 2019, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision, but he did not specify any ground for judicial review either in the Form 86 or in his affirmation.

8.  Based on consideration of the documents alone, on 31 May 2022 the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out at [12] – [17] of the Form CALL‑1 as follows:

“ 12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.’

15. There is no valid reason to challenge the Board’s Decision.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

9.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A).

10.  On 4 July 2022, he took out a summons to seek an extension of time to appeal against the decision of the Judge. In his supporting affirmation, the applicant simply said he did not get any letter from the court and do not agree with the court’s decision.

11.  The Judge determined the application on paper without an oral hearing. In his decision dated 27 July 2022, the Judge dismissed the application as he considered that there was no realistic prospect of success in the intended judicial review.

The renewed application before this Court

12.  On 28 July 2022, the applicant took out a summons seeking an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review. In his accompanying affirmation, the applicant simply said he was late to appeal and requested an extension of time. He has failed to lodge any written submissions in accordance with the direction of the Registrar of Civil Appeals.

13.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

14.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. 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) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

15.  There is no valid explanation for the delay in the present case. The applicant needs to show a real prospect of success in the appeal in order for time to be extended.

16.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing 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 the appeal were a fresh application for judicial review.

17.  In the present case, the Board rejected the applicant’s non-refoulement claim because it had found that the applicant’s evidence was seriously undermined by significant anomalies. The Board had discussed its concerns with the applicant during the hearing and had set out in detail the reasons why it was eventually unable to accept the core aspects of his case. It is for the Board, not for the court, to assess the credibility of the applicant’s claims. These findings are within the province of the Board, and the court cannot interfere with such assessments unless they are vitiated on public law grounds. The applicant had failed to set out any such grounds. Nor are there any such grounds evident in the papers before us.

18.  The applicant has also failed to show how the Judge has erred in refusing leave for judicial review.

19.  As there are no grounds of appeal advanced that point to any error in the Judge’s decision, the appeal should be dismissed. Having considered the materials before us, we are of the view that the Judge’s observations are justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

20.  We do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons is accordingly dismissed.