RE BADJIE MALICK

CAMP 183/2022, [2023] HKCA 1009

On Appeal From [2021] HKCFI 578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 183 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1129 OF 2017)

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J U D G M E N T

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

1.  On 5 March 2021, DHCJ Bruno Chan (“the Judge”)  refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim and dismissed his leave application (“the JR Decision”)  [2021] HKCFI 578. Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance (“CFI”)  on 9 September 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 25 May 2022.

3.  On 7 June 2022, the applicant filed his summons in CAMP 183/2022 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 7 June 2022, the applicant lodged his written submissions on 20 June 2022.

5.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of the Republic of The Gambia.  He arrived in Hong Kong on 7 October 2014 with permission to remain as a visitor up to 5 January 2015.  He overstayed and surrendered to the Immigration Department on 12 January 2015.  On 23 January 2015, he raised a non-refoulement claim alleging that if refouled, he would be harmed or even killed by the National Intelligence Agency (“NIA”).  He alleged that (1)  he had witnessed a hit and run accident involving a child, caused by the presidential convoy of then President Jammeh; (2)  he told a news reporter about the accident, and (3)  he was later told by a friend that the reporter had been arrested by the NIA and that he should leave the country for his own safety.  He then left The Gambia via Senegal for the PRC, from where he made his way to Hong Kong.  The factual background of this case was succinctly summarised by the Judge at [2] to [3] of the JR Decision.

7.  By a Notice of Decision dated 16 March 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  and attended an oral hearing on 8 November 2017.  By its decision dated 4 December 2017, the Board dismissed the appeal.  For the detailed reasons set out at [40] to [58], the Board found that the applicant was not a reliable witness as his evidence in relation to the alleged events in The Gambia was confused, inconsistent and unconvincing.  This included important issues such as whether the reporter had published the story of the hit and run.  The applicant raised a number of new claims at the hearing, such as alleging that the reporter’s family blamed him for his death, which the Board found that was his attempt to strengthen his claim for non-refoulement protection.  It was further noted that a new president was elected in December 2016, and credible country of origin information (“COI”)  reports indicated that the new government is democratic, open and transparent, and has removed the corrupt practices of the former president.  The applicant did not dispute that.  Therefore, the Board determined that the applicant would not face a real risk of harm or ill-treatment upon his return to his home country, and rejected his claim on all applicable grounds.

Application for leave to start judicial review

9.  On 21 December 2017, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions.  In his supporting affirmation, he advanced a number of grounds vis-a-vis the Director and only the following vis-à-vis the Board:

(1)  The Board failed to make sufficient enquiry before finalizing the determination;

(2)  The Board failed to give sufficient chance to the applicant to arrange relevant evidence for his appeal. 

The JR Decision

10.  An oral hearing was fixed for 29 September 2020 but the applicant failed to attend without any explanation.  The Judge proceeded to dispose of the application on paper.  After due consideration of the Board’s decision as well as the applicant’s grounds of intended challenge, the Judge refused leave for judicial review for reasons set out in [9] - [12] of the JR Decision:

“9. All these however appear to me to have been copied from some pro forma commonly used in this type of applications but which are entirely irrelevant to the Applicant’s case, or that they are just some broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or what relevancy is state acquiescence to his claim, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to conduct sufficient enquiry or to apply high standard of fairness in their determination of the Applicant’s claim, or how did the Adjudicator fail to provide the Applicant the opportunity to provide his evidence in support of his claim or appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant who also failed to attend the hearing of his application without any explanation. As such I do not find any of these grounds reasonably arguable for his intended challenge.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 35 – 60 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, and given the indisputable fact as found by both the Director and the Board of the significant changes to the presidency and government as well as the political situation in The Gambia since the Applicant’s departure which would not pose any risk to him upon his return to his home country, I simply do not find any reasonably arguable basis for him to challenge the finding of the Board.

12.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the CFI on 9 September 2021 for an extension of time to appeal.  That was dismissed by the Judge on 25 May 2022.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appeal, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3) the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.  As for (1), the applicant was late by more than 4 months between the deadline for filing his appeal against the JR Decision and the summons filed in the CFI, even after taking into account the general adjournment period of the court from 7 March to 11 April 2022 due to the Covid pandemic.  His delay was substantial.

14.  As for (2), the reasons for the delay, the applicant explained at the hearing of the summons before the Judge that he never received the JR Decision in the mail and he was only informed of it by the immigration officer when he reported on his recognizance, but by then he was already out of time with his intended appeal.  However, he did not provide any further details or documentary evidence in support of these allegations.  The court record showed that the JR Decision was sent to the applicant’s last reported address but it was returned as undeliverable mail.  It is incumbent on the applicant to provide the court with his up to date address so that he can be reached in an effective and timely manner.   There was no good reason for the applicant’s substantial delay.

15.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not raise any proper ground of appeal against the JR Decision in his affirmations. 

16.  In his written submissions, he claimed that the Decision entailed significant implications for his rights not to be subjected to torture and to non-refoulement protection.  He quoted cases holding that high standards of fairness are required in the determination of a non-refoulement claim.  He claimed the Board had acted in a procedurally unfair manner without properly assessing his credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is concerned with the late filing of notice of appeal to the Board.  However, he did not explain or elaborate on how the aforesaid cases and legal provisions were relevant to his case at all.

17.  It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility.  His claimed risk of harm by the NIA was based on hearsay and in any event he accepted that in the 2016 election, the former president (which he alleged the NIA allegedly was protecting)  has stepped down and a more open and democratic government was formed, with focus on the rule of law, and the elimination of corrupt practices.  The Board was entitled on the evidence to reach its findings and conclusion and the court would only intervene when there is a valid public law ground.  We see none in this case.

18.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave. 

19.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 7 June 2022.