Osman Agami Abdelmaksoud Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 365/2021

[2021] HKCA 1969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 365 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1732 OF 2018)

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BETWEEN

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J U D G M E N T

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

1.On 29 June 2020, Deputy High Court Judge K W Lung (“the Judge”)  refused the Applicant’s application for leave to apply for judicial review of the decisions of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”)  dated 3 March 2017 and 20 July 2017.

2.On 14 July 2020, the Applicant filed a summons for extension of time to appeal against the Judge’s order.  On 8 October 2020, the Applicant filed another summons for extension of time to appeal.  On 30 July 2021, the Judge dismissed the two summonses.

3.On 31 August 2021, the Applicant filed the present summons applying for “leave to appeal” against the Judge’s order dated 29 June 2020.

4.The present application is treated as a renewed application for an extension of time to appeal against the Judge’s order of 29 June 2020 (see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

5.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

6.The Applicant is a national of Egypt.  He came to Hong Kong on 23 July 2007 as a visitor.  He overstayed and surrendered to the Immigration Department on 22 October 2007.  He lodged his non-refoulement claim on 23 January 2008 on the basis that, if refouled to Egypt, he would be harmed or killed by the Security Department of the Egyptian Government as they suspected him to be a spy for Israel.  Details of the Applicant’s claim have been summarised by the Judge at §§4-12 of the CALL-1 Form.

7.By a Notice of Decision dated 1 September 2015 and Notice of Further Decision dated 26 April 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decisions”).

8.The Applicant appealed the Director’s Decisions to the Board.  On 3 March 2017 the Board rejected the Applicant’s appeal against the Notice of Decision of 1 September 2015.  On 20 July 2017, the Board rejected the Applicant’s appeal against the Notice of Further Decision of 26 April 2017 (together, “the Board’s Decisions”).

JUDGE’S DECISION

9.On 23 August 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decisions.

10.On 29 June 2020, the Judge refused to grant leave to the Applicant to apply for judicial review and dismissed his application.

11.The Judge found that the Applicant’s application was late and he was unable to show that he had any reasonable prospect of success in his intended judicial review.  His reasons were set out at §§21-30 of Form CALL-1:

“21. In his affirmations in support of his application, he had raised the grounds below.

1. He was uneducated.

2. He did not have legal representation provided for him before the Board.

3. The Board made the assumptions without considering the evidence presented by him.

4. It was wrong for the Board to make the inference that he did not have a case.

22. The applicant’s application is late; the Board’s latest Decision is dated 20 July 2017 and he filed his Form 86 on 23 August 2018. Under Order 53, rule 4(1)  of the Rules of the High Court, the application has to be made promptly and in any event within 3 months from the date when the grounds of the application first arose unless the Court extends the time for him to make the application. This Court has to consider the merits of his application in order to determine whether time should be extended for him to make the application. AW v. Director of Immigration and William Lam CACV 63 of 2015.

…

25. In Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22, the Court of Appeal held that the applicant has no absolute right of free legal representation at every stage of the proceedings. It would be sufficient if he was provided with legal representation at the screening stage. He was represented by duty lawyer when he was interviewed by the immigration officer.

26. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held ‘13.… …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.’

27. In Re: TK v Jenkins & Another [2013] 1 HKC 526, C.A., the Court of Appeal held that if the risk of persecution or torture is a localised one, and it is not unreasonable, unsafe or unduly harsh for the refugee or claimant to relocate to another part of the country in question (the ‘internal relocation alternative’), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT [32].

…

30.    The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

12.Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the Applicant within the 14-day period.

13.By a summons dated 14 July 2020, the Applicant applied for an extension of time to appeal the Judge’s order refusing to grant leave to apply for judicial review. He filed another summons for an extension of time to appeal on 8 October 2020.  On 30 July 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed the two summonses.

THIS APPLICATION

14.In his summons and supporting affirmation dated 31 August 2021, the Applicant states that he “would like to seek leave to appeal out of time due to the fact that he did not receive the sealed order, CALL-1 and Judgement within 14 days from 29 June 2020 [due] to the order being lost in post”, and could only obtain those documents after searching the court file.

15.In his written submissions dated 14 September 2021, the Applicant states that he is not a spy, is a student coming from China, but otherwise, his submissions are irrelevant to this appeal.

16.The Applicant lodged further written submissions dated 5 October 2021 without obtaining leave from the court.  In his 10-page submissions, he provides some background information about his life and circumstances in Egypt, repeats that he is not a spy, and makes generic submissions on basic human rights.  Again, most of his submissions are irrelevant to this appeal.

DISCUSSION

17.In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

18.The prospect of success of the intended appeal is important: the court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

19.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: Re: Kartini [2019] HKCA 1022, 9 September 2019, at §13.

20.The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

21.Regarding the chances of the appeal, the Applicant has failed to identify any specific error on the part of the Judge in refusing to grant leave to apply for judicial review.

22.Since the Applicant has failed to show any errors in the Judge’s decision to refuse to grant leave to apply for judicial review, or any viable grounds of appeal in his summons, supporting affirmation, or written submissions, there is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

23.The application for extension of time to appeal is refused, and the Applicant’s summons of 31 August 2021 is dismissed.

The Applicant, acting in person