Macandza Manuel Jose v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CAMP 260/2020

[2021] HKCA 1067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 260 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 423 OF 2018)

________________________

________________________

Before: Hon Kwan VP and G Lam JA in Court

Date of Judgment: 30 July 2021

________________________

J U D G M E N T

________________________

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

1.On 4 April 2019, Deputy High Court Judge Bruno Chan refused to grant extension of time for the applicant to apply 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 12 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 had ended on 18 April 2019.  The application was dismissed by the judge on 16 September 2020[2].

3.On 29 December 2020, the applicant filed a renewed application for leave to appeal out of time against the decision of the judge dated 4 April 2019.

4.The applicant is a national of Mozambique.  He is 37 years old.  He arrived in Hong Kong on 30 September 2010 as a visitor and subsequently overstayed.  He was arrested by the police on 25 October 2011.  On 4 November 2011, he lodged a torture claim on the basis that if he returns to Mozambique he will be harmed or killed by his paternal uncle over a land dispute.  His torture claim was later treated as a non-refoulement claim under the unified screening mechanism. 

The Director’s decisions

5.By a Notice of Decision dated 6 July 2015, the Director rejected the applicant’s claim on torture risk[3], BOR 3 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 appealed against the Director’s decisions to the Board.  He attended the hearing before the Board on 6 December 2016 but chose not to give evidence at the hearing.  The Board considered that the applicant’s case is incredible and implausible.  The Board found many inconsistencies, contradictions and impossibilities in the applicant’s case and held that the applicant had made up his case and that there was no ill‑treatment. The Board further considered that even assuming that the applicant’s evidence is credible, his case still fell short of severe pain or suffering.  It was held that there is no evidence of any public or government officials being involved and internal relocation would absolve all the risks, if any.  Therefore, the appeal was dismissed by the Board on 21 July 2017.

The intended judicial review

8.The applicant filed a Form 86 and an affirmation on 15 March 2018 for leave to apply for judicial review against the decisions of the Director and the Board, after the expiry of the three-month period for applying for leave to bring judicial review.  He did not put forward any grounds for his intended challenge.   

The judge’s decision

9.DHCJ Bruno Chan considered the application on the papers as the applicant did not request for an oral hearing.  The judge considered that it is not open to the applicant to challenge the Director’s decision by way of judicial review as the decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision.  The judge further held that the applicant has no prospect of success as he did not provide any explanation for the substantial delay or any grounds for his intended application.  The judge reviewed the decision of the Board and did not find any error of law or procedural unfairness in it, or any failure to apply high standards of fairness in the Board’s consideration and assessment of the applicant’s claim.  The judge therefore refused to grant extension of time for the applicant to seek leave to apply for judicial review and dismissed the application on 4 April 2019.

Grounds of intended appeal

10.The applicant did not state any grounds of appeal in the present summons.  He only stated in his supporting affirmation that he does not have legal representation and does not know the court’s procedure so he requested the court to help him in this matter.

Analysis and disposition

11.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.

12.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 4 April 2019.  The applicant took out a summons at the court below on 12 May 2020.  He was late by more than 11 months, exclusive of the court’s summer vacation during the period of August 2019.  The delay is very substantial.  

13.The applicant explained to the court below that he did not receive the court’s decision as he had changed his address but did not inform the court.  His explanation cannot justify his substantial delay as a litigant has the duty to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). 

14.As the 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.

15.In the present application, the applicant did not provide any grounds of appeal.  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. 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.

16.As no viable ground is put forward to reverse the judge’s decision, there is no prospect of success in his intended appeal.  We refuse to grant an extension of time to appeal against the judge’s decision of 4 April 2019 and dismiss the summons filed on 29 December 2020.

The Applicant, acting in person

[1] [2019] HKCFI 399

[2] [2020] HKCFI 2253

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

[4] 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.

[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.