RE KPAMOU GBOTOI BERNARD

CAMP 113/2018

[2019] HKCA 168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 113 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 293 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  By summons filed on 16 July 2018, the applicant applies for leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 29 September 2017 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 12 May 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 19 March 2015 and 31 October 2016 rejecting his non-refoulement claim.

2.  In addition to filing an affirmation, the applicant had, pursuant to the directions of the Registrar of Civil Appeals, lodged a written submission to support his application.

3.  Under Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  The applicant requested that an oral hearing be held to hear his application.  Having considered the papers and the circumstances of the case, we are of the view that it is appropriate to determine the present application on paper without a hearing, pursuant to Order 59 rule 2A(5)(a).

4.  The applicant is a national of Guinean.  He entered Hong Kong on 22 September 2009 and was given permission to remain as a visitor until 6 October 2009.  He was arrested by the police on 7 October 2009. On 26 July 2010, he raised a torture claim which was taken as a non-refoulement claim following the implementation of the Unified Screening Mechanism on 3 March 2014.    

5.  The applicant’s claim is based on his fear of being harmed or killed by Dadia Camara (“DC”), who was formerly the President of Guinea and the Guinean military leader, as well as by the Guinean military force.  The background of the applicant and his case was set out in detail in the decisions of the Director and the Board, and summarized by the Judge at [3] to [10] of Form CALL-1 dated 29 September 2017. 

6.  In gist, the applicant was born in Guinea, and is a widower with no immediate family.  In 1975, he moved from Guinea to the Ivory Coast with his parents.  In 2003 when the civil war broke out, he relocated to a district in Guinea called Bombeto, Ratoma in Conakry, where the land was owned by the government and the houses were built illegally.  In December 2007, the government sent in soldiers led by DC and demolished all the houses.  Several hundreds of residents led by the applicant and the head of the district marched to the presidential palace to voice their grievances and to demand compensation.  When they refused DC’s demand to disperse, they were attacked by the soldiers.  It developed into a riot in the course of which the soldiers fired at the protestors killing some of them.  The applicant and some protestors were arrested and detained in a military camp.  When they were later being transferred to another military camp, the applicant jumped from the moving truck and managed to escape.  With the help of friends, he went into hiding and later crossed the border to Liberia.  After staying there illegally for 18 months, the applicant returned to Conakry, Guinea and learnt that he was wanted on a national arrest warrant.  With help from a friend, he obtained a passport and eventually left Guinea for mainland China, from where he came to Hong Kong.   

7.  By a notice of decision dated 19 March 2015 and a further decision dated 31 October 2016, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds, and the further decision relates to the BOR 2 risk[4] ground.   

8.  The applicant appealed the Director’s first decision to the Board.  At the oral hearing on 5 August 2016, the Board invited the applicant to provide additional materials and facts to support his non-refoulement claim, to which he replied that he did not have anything to add and further elected not to give evidence. 

9.  The Board considered the appeal on all applicable grounds.  By a decision dated 12 May 2017, the Board dismissed the applicant’s appeal.  For the reasons given in [21] to [47] of its decision, the Board found the applicant’s case to be speculative in part and hearsay in other parts, and concluded that his non-refoulement claim was not credible.  The Board also found state protection and internal relocation were reasonably available in light of the country of origin information (“COI”).  The Board concluded that the applicant had not made out a case in respect of any of the applicable grounds for non-refoulement protection.  

10.  On 14 June 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board on the sole ground that the decision was wrong and unfair.  He, however, did not provide any particulars of error or unfairness.    

11.  The Judge heard the application at an oral hearing held on 29 August 2017.  By her decision dated 29 September 2017, the Judge considered the ground for judicial review not reasonably arguable and had no prospect of success, and refused to grant leave to apply for judicial review. In [13] to [23] of the Form CALL-1, the Judge gave a careful analysis of the Board’s decision, concluding in [24] that:

“24. I have considered with rigourous examination and anxious scrutiny the papers of this application. I found no substance in the only ground of this application that the decision was wrong and unfair. The evidence was assessed in full and fairly by the adjudicator. The reasons for finding the applicant disingenuous were clear. The COI material was considered thoroughly or properly. I do not find any evidence to show there was an error of law by either decision-maker. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions satisfied the enhanced Wednesbury test, they were not Wednesbury unreasonable.”

12.  The 14-day period[5] for the applicant to appeal the Judge’s decision expired on 13 October 2017.  On 16 July 2018, the applicant took out the present summons seeking leave to appeal out of time.

13.  In considering whether to extend time for appealing against a refusal of 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 prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: 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, 22.01.2016). 

14.  The applicant was late by 9 months which is a serious delay.  He explained that he did not know how to lodge an appeal and did not have money.  He also mentioned in the written submission that as a French speaking person, he was not able to obtain assistance in preparing the court documents.  Although the delay was not insubstantial, we are prepared to accept his explanation. 

15.  We turn to consider the prospect of success of the intended appeal, which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for appeal: Re MK HCMP 2609/2016, unreported; Islam Raja Rais v. Director of Immigration HCMP 881/2017, unreported; and Re Gurung Min Bahadur [2018] HKCA 226. 

16.  The applicant’s summons contained a single proposed ground of appeal, namely “[the] Judgment is unreasonable”.  We take this to be a reference to the Judge’s decision to refuse leave to apply for judicial review. In his written submission, the applicant complained that he was not provided with legal representation for the appeal before the Board, and that the Board assessed his claim based on insufficient information.  He further said that he did not have the resources to dig out and translate relevant COI which are mostly in French.  The applicant disagreed with the Board’s rejection of his case that it was unsafe for him to return to Guinea, and argued that, if refouled, he would be locked up indefinitely without trial.  He also contended that he did not come to Hong Kong for economic reasons.       

17.  In our view, what was put forward by the applicant does not constitute valid ground of appeal against the Judge’s decision.  Although the summons complained that the Judge’s decision was unreasonable, the thrust of the arguments in the written submission was directed at the Board’s decision.

18.  In respect of the complaint of not being provided with legal representation in the appeal before the Board, this Court has held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v. Director of Immigration HCAL 51 of 2007 prescribes that a non-refoulement claimant has an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  The applicant was represented by lawyer assigned by the Duty Lawyer Service in presenting his case to the Director.  With the assistance of his lawyer, he had the opportunity to, and could have, put forward COI and other information he considered to be relevant and helpful to his case. 

19.  As for the applicant’s claimed fear of harm and danger on being refouled, this was not accepted by the Board.  Assessment of risk is a matter for the Director and the Board, who are the primary decision-maker.  It is not the function of the Court in a judicial review or on appeal to re-assess the non-refoulement claim or to review the decision of the Board.  The Judge had concluded that there was no error of law or procedure in the Board’s decision.  We do not discern any error in the Judge’s conclusion and reasons.

20.  In summary, the applicant has not identified any error in the Judge’s decision.  Neither has he provided a proper basis upon which this Court may interfere with the Judge’s decision.  In the premises, the applicant’s intended appeal has no prospect of success, and it would be futile to extend the time for him to appeal the Judge’s decision.  Accordingly, we refuse the application for leave to appeal out of time and dismiss the applicant’s summons.