CAMARA LAMINE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 4/2025, [2025] HKCA 249

On Appeal From [2024] HKCFI 2614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 4 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 2036 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 10 October 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 27 May 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 20 August 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant, born in 1992, is a Guinean. He last entered Hong Kong as a visitor on 26 May 2015 and had overstayed since 10 June 2015. The applicant surrendered to the Immigration Department on 23 June 2015 and made a non-refoulement claim on 30 July 2015. The claim was made on the basis that, if refouled, he would be seriously harmed or even killed by the Guinean government because of his involvement in the Union des Forces Démocratiques de Guinée (“UFDG”), an opposition political party.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]  By a notice of decision dated 20 August 2018, the Director rejected his claim.

4.  The applicant appealed to the Board against the Director’s decision. During the oral hearing held on 22 March 2019, the Board addressed the applicant’s claim about the factual error made by the Director, but found it had no bearing towards his non-refoulement claim. Meanwhile, the Board also found the applicant was evading its questions and hence had doubts towards his credibility. The Board formed the impression from the way the applicant responded that he was not trying to assist the Board with the information it needed in order to assess his claim. The Board noted that the applicant’s narrative was confused, incoherent and unclear and that he frequently contradicted his own statements. In the end, the Board formed a “significantly adverse review” of the applicant’s credibility.

5.  In its decision dated 27 May 2019, although the Board noted from the country of origin information that there were significant political problems and human rights abuses in Guinea at the time when the applicant departed from the country, it was not convinced that the applicant had any significant political profile that would put him in a real risk of harm upon his return to Guinea. Accordingly, the Board dismissed the applicant’s appeal and affirmed the decision of the Director.

The Judge’s decisions

6.  On 17 July 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. In the supporting affirmation, the applicant stated that he belonged to an influential political youth group and he would be persecuted upon return to his country. He also mentioned that the Guinean government is corrupt and he needs help to save his life. A hearing was conducted on 16 September 2024 during which the applicant asserted that the Board had not taken his case seriously.

7.  On 10 October 2024, the Judge issued his decision refusing to grant leave to apply for judicial review. The reasons were set out in [17] to [22] of the said decision as follows:

“ 17. 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).

18. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board did not take his case seriously as it did not accept his evidence.

19. 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.’

20. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded and his evidence not acceptable. The reasons stated in his affirmation and before the Court are not valid to challenge the Board’s Decision.

21. There is no reason that the Court should interfere with the Board’s finding of the facts.

22. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

8.  On 12 November 2024, 19 days after the expiry of the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant made an application for leave to appeal out of time the Judge’s decision dated 10 October 2024. He did not give any explanation for his delay in his supporting affirmation.

9.  On 19 December 2024, the Judge dismissed the applicant’s application for extension of time to appeal on the ground that he had failed to show any realistic prospect of success in his intended appeal.

The renewed application before this Court

10.  By summons filed on 6 January 2025, the applicant made an application to this Court for leave to appeal out of time against the Judge’s decision dated 10 October 2024. In his supporting affirmation, he claimed that the decision was lost in the post and he could only obtain it upon searching the court file, by which time he had already missed the appeal deadline.

11.  In the applicant’s written submission lodged on 14 January 2025, he merely recited general legal principles related to high standards of fairness and Wednesbury unreasonableness. He also quoted section 37ZT of the Immigration Ordinance concerning late filing of a notice of appeal with the Board. Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  The applicant was late for 19 days when he filed his initial summons on 12 November 2024. We do not accept his explanation in his renewed application that he failed to obtain the Judge’s decision of 10 October 2024 given that the said decision was sent to his last known address without being returned undelivered. Nonetheless, having regard to the relatively short delay, we are prepared to focus on the merits of his intended appeal.

13.  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.

14.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. The Board had heard the applicant and assessed his evidence providing detailed reasons. The Board had doubts towards the credibility of the applicant and was unconvinced that he had any significant political profile that would put him in a real risk of harm upon his return to Guinea. Furthermore, the Board had also expressly addressed the factual error made by the Director, which it found had no bearing towards the applicant’s non-refoulement claim. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

15.  It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision. The applicant has failed to establish or even identify any such public law grounds.

16.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

17.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused. The applicant’s summons dated 6 January 2025 is accordingly dismissed.