Re Masruroh Imas and Another

CAMP 162/2020

[2021] HKCA 562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 162 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 386 OF 2017)

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Before: Hon Kwan VP and Chu JA in Court

Date of Judgment: 28 April 2021

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 29 March 2018, Deputy High Court Judge Woodcock refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.On 7 May 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 12 April 2018.  The application was heard by Deputy High Court Judge Bruno Chan on 16 July 2020 and dismissed on 20 August 2020[2].

3.On 11 September 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge’s decision of 29 March 2018.

4.The applicant is a national of Ghana.  He is 33 years old.  He first arrived in Hong Kong on 25 July 2006.  He had overstayed since the expiry of his visa on 29 August 2006.  He surrendered to the Immigration Department on 19 March 2007.  He was convicted of the offence of overstaying and sentenced to 21 days’ imprisonment suspended for 18 months.  The applicant did not report to the Immigration Department as required for repatriation on 2 April 2007.  He was arrested by the police on 25 May 2008.  He lodged a torture claim on 27 May 2008 on the basis that he will be harmed or killed by his uncle if he returns to Ghana because of a land dispute.

The Director’s decisions

5.The torture claim was treated as a non-refoulement claim under the unified screening mechanism.  By a Notice of Decision dated 21 May 2015, the Director rejected the applicant’s claim on BOR 3 risk[3], torture risk[4] and persecution risk[5]. 

6.By a Notice of Further Decision dated 25 October 2016 , the Director rejected the applicant’s claim on BOR 2 risk[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim. 

The Board’s decision

7.The applicant’s appeal was heard before the Board on 30 November 2016.  The Board found there is no evidence to show that there is a real and personal risk that the applicant’s uncle will kill him, torture him or subject him to cruel, inhuman or degrading treatment or punishment or that he will not be able to access the state protection if he is refouled to Ghana.  The Board also considered that the applicant could avoid the risk, if any, by relocation within Ghana, which will not be unreasonable or too harsh for him.  Thus, the Board dismissed the applicant’s appeal on 28 April 2017.

Theintendedjudicial review

8.The applicant filed a Form 86 and an affirmation on 11 July 2017 to seek leave to apply for judicial review but did not put forward any particular ground for the intended judicial review in his leave application. 

The judge’s decision

9.The applicant attended the hearing before DHCJ Woodcock on 12 December 2017.  Although the applicant only named the Director as the putative respondent in his Form 86, he did make submissions against the Board at the hearing.  He complained that the Board only took five months to make the decision.  The judge expressed the view that only in very exceptional circumstances should an applicant be able to seek judicial review of both the decisions of the Director and the Board, as the Board would have looked at the decision of the Director for any errors in that it treated the appeal as a rehearing.  The judge considered that the proposed respondent ought to be the Board.

10.The judge held that the applicant’s submissions do not constitute a valid ground against the Board’s decision and his claim is not reasonably arguable.  It was also found that there is no error of law, no evidence of procedural unfairness or failure to adhere to a high standard of fairness in both the decisions of the Director and the Board.  The judge had also considered the Director’s decision and drawn the same conclusions.  As there is no realistic prospect of success in the intended judicial review, the judge refused to grant leave to apply for judicial review on 29 March 2018.

Grounds of intended appeal

11.The applicant only stated in his supporting affirmation that his life will be in danger if he returns to Ghana without giving any particular grounds of appeal.

12.As the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 2 December 2020 to lodge his written submissions within the prescribed time, he is deemed to be relying only on the representations made in his summons.

Analysis and disposition

13.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 29 March 2018.  The applicant took out a summons at the court below on 7 May 2020.  He was late by about two years.  The delay is very substantial.

15.The applicant explained in his affirmation filed with the court below that he failed to lodge his appeal in time because of financial problem.  His explanation cannot justify such an excessive delay. 

16.As his delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

17.In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

19.The applicant exhibited some new evidence to his affirmation.  He should not be allowed to adduce further evidence as he has not applied for leave.  Even if such evidence concerned an event which occurred after the hearing at the court below[7], it does not appear to have any important influence on the outcome of the case.  In particular, the Board had found that the applicant can avoid any risk of harm if he relocates to other places in Ghana and the applicant has not provided any evidence to refute such finding of the Board.

20.The applicant has not put forward any viable ground to reverse the decision of the judge.  In particular, he failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

21.For the above reasons, the applicant does not have any prospect of success in the intended appeal.  We therefore refuse to extend time to appeal and dismiss the summons filed on 11 September 2020.

The Applicant, acting in person

[1] [2018] HKCFI 677. Although the applicant only named the Director as the putative respondent in the Form 86, the date of the Board’s decision was mentioned in his supporting affirmation (mistakenly referred to as the Director’s decision) and he made oral submissions concerning his complaint against the adjudicator at the hearing.  The judge in effect considered both the decisions of the Director and the Board in the leave application.

[2] [2020] HKCFI 1962

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7] See last page of the exhibit: date of email is 10 September 2020