Sillah Haji v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 123/2021

[2021] HKCA 1838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 123 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1760 OF 2018)

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Before: Hon Kwan VP and G Lam JA in Court

Date of Written Submission: 2 July 2021

Date of Judgment: 10 December 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 7 July 2020, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”)^[1] concerning his non‑refoulement protection claim^[2].

2.On 23 February 2021, Deputy High Court Judge P Li refused to grant extension of time to appeal against the said decision as there is no merit in the applicant’s intended judicial review^[3].

3.On 22 April 2021, the applicant filed the present summons with the Court of Appeal seeking to challenge the judge’s decision.  This application should be treated as a renewed application for leave to appeal out of time against the decision of DHCJ Lung dated 7 July 2020: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4.The applicant is a national of Gambia.  He is 45 years old.  He came to Hong Kong on 29 May 2014 as a visitor and subsequently overstayed.  He surrendered to the Immigration Department on 28 August 2014 and lodged a non-refoulement claim on 26 September 2014.  His claim was made on the basis that he will be harmed or killed by Alhaji Yahya Jammeh (“Jammeh”), the then president of Gambia, and/or the Gambian Government because the applicant had filed a case against him for his failure to pay for a garment order.

5.By a Notice of Decision dated 23 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk^[4], BOR 2 risk^[5], BOR 3 risk^[6] and persecution risk^[7]. 

6.The applicant appealed against the Director’s decision to the Board. The applicant further stated in the Notice of Appeal that his uncle threatened to kill him because he failed to repay the debt owed to his uncle.  The applicant was absent from the hearing before the Board on 28 March 2018. The Board tried to contact the applicant on his mobile phone number but was unsuccessful.  The Board sent a notice requesting the applicant to provide a satisfactory explanation for his absence but received no response from him. The Board then proceeded to consider the appeal in his absence.

7.The Board found that the centrepiece of the applicant’s story cannot stand as certain aspects of his account are exaggerated, contradictory to the country of origin information, incredible and/or inherently implausible.  The Board considered there is no credible evidence to show that Jammeh has a motive to kill the applicant or cause him grave harm, whether by himself or through his agents, so there is no reason for the applicant to have the alleged fear.  Besides, Jammeh has been in exile since 2017 so he is no longer in power in Gambia and there is no reason for the applicant to fear for his safety upon his return to his country.  Furthermore, the Board also rejected the applicant’s account of his conflict with his uncle as it is not supported by any credible evidence.  The Board assessed that the risk of harm upon the applicant’s return is small in any event as his uncle had never physically harmed or tried to harm him in the past.  In addition, the Board also considered that the availability of state protection and internal relocation alternative further lowers or negates the perceived risk. Therefore, the Board dismissed the appeal on 12 July 2018.

The judge’s decision

8.On 28 August 2018, the applicant applied for leave to apply for judicial review against the decisions of the Director and the Board.  He did not set out any specific grounds for his intended judicial review.  The applicant was absent from the hearing before DHCJ Lung on 22 January 2020. The judge considered the application on paper.  He held that there is nothing to show the Board had committed any error in the application of law or in coming to its conclusions.  Thus, the judge found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 7 July 2020.

Grounds of appeal

9.The applicant did not provide any grounds of appeal in his summons or affirmation.

10.In his written submissions, the applicant only stated that he did not receive the letter from the Board on time and reiterated the problem he may face if he returns to his country.

Analysis

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 judge’s order was made on 7 July 2020.  The applicant only took out a summons in the court below on 3 November 2020.  He was late for more than 2 months, exclusive of the court’s summer vacation in August 2020.  The delay is substantial. 

13.The applicant explained in the affirmation filed with the court below that he was late as he had not received the court’s decision on time.  According to the record, the court sent the decision by post on 7 July 2020 to the applicant’s last known address which was provided by the applicant to the Immigration Department.  The mail was returned by the post office.  It is noted that the said address is different from the address stated in the applicant’s summons for extension of time to appeal filed with the court below on 3 November 2020 and another address of his stated in the present summons filed on 22 April 2021.  The applicant has the duty to give the court a correct address to which correspondence or notice can come to his attention in a timely manner, and to notify the court in time of any change in his address. 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).  Under these circumstances, the applicant’s explanation for the delay is not justifiable.

14.As the applicant’s delay is inexcusable, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

15.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.

16.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 decision of 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 it is a fresh application for judicial review.

17.In the present case, the applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  Both the Board and the judge provided detailed reasons for their respective decisions.  The applicant failed to adduce any argument to refute their decisions.

18.For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to grant leave to appeal against the judge’s decision dated 7 July 2020 out of time and dismiss the summons filed on 22 April 2021.

The Applicant, acting in person

[1] The Form 86 was amended by deleting the Director of Immigration as proposed respondent and by deleting the Board as interested party pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court.

[2] [2020] HKCFI 1361

[3] [2021] HKCFI 371

[4] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[5] 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).

[6] 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).

[7] 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.