Re Johnson Kelvin I

CAMP 187/2021

[2022] HKCA 402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 187 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2334 OF 2018)

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Before: Hon Yuen and Barma JJA in Court

Date of Written Submissions: 2 July 2021

Date of Judgment: 18 March 2022

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J U D G M E N T

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

1.On 4 February 2021, DHCJ C P Pang (“the Judge”) refused to grant an extension of time to the applicant to apply for leave for judicial review concerning his non-refoulement claim (“the JR Decision”) and dismissed his leave application. Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 4 May 2021 for extension of time to appeal against the JR Decision (which was late by 2.5 months).  The summons was dismissed by DHCJ To on 20 May 2021. 

3.On 24 May 2021, the applicant filed his summons in CAMP 187/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.In compliance with the directions made by the Registrar of Civil Appeals on 23 June 2021, the applicant lodged his written submissions on 2 July 2021. 

5.Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.The applicant is a national of Liberia. He arrived in Hong Kong on 15 April 2016 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 8 July 2016, he was arrested for overstaying.  On 5 August 2016, he lodged a non-refoulement claim alleging that if refouled, he would be harmed or even killed by a gang called B2K which had kidnapped him as he had refused to join them.  The factual background of this case was succinctly summarised by the Judge at [3] of the JR Decision ([2021] HKCFI 234).

7.By the Notice of Decision dated 9 December 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 11 April 2018.  In its decision dated 1 June 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [15] to [30], the Board found that the applicant was not a credible witness, and that his evidence was vague, unsubstantiated and implausible.  The Board was unable to find any information relating to the existence of B2K, and the applicant was unable to explain why there was no information about it except for saying it is a secret group.  He also could not give a sensible explanation why he had associated with B2K in the first place, and then when they had kidnapped him, why one of them would help him to escape.  The Board did not attach any credence to the applicant’s claim and rejected his evidence in its entirety. In any event, the Board found internal relocation is a viable option. For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds. 

Application for leave to start judicial review

9.On 24 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  Pursuant to Order 53, rule 4(1) of the Rules of the High Court (Cap.4A), an application for leave to apply for judicial review should be made promptly and in any event within 3 months from the date when the grounds for application first arose. 

10.In the Form 86, the applicant named “USM” as the proposed respondent and quoted decisions of the Director and the Board.  The Judge treated the intended challenge as being against the decision of the Board as the Respondent and the Director as an Interested Party.  The applicant did not put forward any ground for relief.

The JR Decision

11.The applicant did not request an oral hearing and the application was disposed of on paper.   After due consideration of the decisions of the Director and the Board, the Judge refused to grant an extension of time and dismissed the leave application for reasons set out in [12] - [26] of the JR Decision:

“12.  The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

13.  When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

Application out of time

14.  It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court will have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

15.  The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

16.  In this case, even counting only from the 3-month time limit which ended on 1 September 2018, the application to challenge the Board’s decision was late by more than 1 ½ months.  The delay was not a short one.  The applicant did not request extension of time or give explanation for the delay.  I cannot find any good reason for the undue delay.

Merits of the intended application

17.  Nevertheless, I will also consider the merits of the intended judicial review.  Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

18.  In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected his account of primary facts based on the implausibility and lack of evidence in support of his account.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.  The Board also found that he could seek protection from the police and it would be safe for him to move to a different part of his country.

19.  As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

20.  The applicant stated no proper grounds of the judicial review in Form 86.  He mentioned nothing in the form or in the affidavit to suggest how the Board erred in the public law sense.

21.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

22.  I also agree with the Board that the applicant delayed in lodging the claim for protection after he came to Hong Kong.  Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  It could be taken into account as damaging the applicant’s credibility and adversely affected the credibility of the claim.

23.  Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

24.  There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

25.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

26.  For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

Application for extension of time to appeal the JR Decision

12.As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 4 May 2021 for an extension of time to appeal.  That was dismissed by DHCJ To on 20 May 2021.  Hence, the Summons to this court. 

Discussion

13.In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).  As for (1), the applicant was late by 2.5 months between the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.   

14.As for (2), the reasons for the delay, the applicant claimed in his supporting affirmation that he did not receive the court letter and the JR Decision on time without any detailed explanation.  The Judge found the explanation was nothing more than an empty assertion and that his failure to give particulars reflects an absence of valid reason.  We agree with the Judge’s conclusion on this issue.

15.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant’s grounds of review were duly considered by the Judge.  In his application for extension of time before the Judge, he did not raise any proper ground of appeal against the JR Decision.  The Judge had applied the right test and legal principle as set out in AW v Director of Immigration [2016] 2 HKC 393 in considering whether to grant an extension of time to the applicant, and it is plainly right for the Judge to conclude that there is no realistic prospect of success in the intended appeal and to refuse to extend time for an unmeritorious application. 

16.In the applicant’s summons, supporting affirmation and written submissions before this Court, he also failed to provide any ground to reverse the JR Decision.  In his written submissions, he alleged that he received a letter (contents unidentified) on 23 May 2021 and therefore he took out the summons (which is the present summons) on 24 May 2021. However, this was not related to his delay in appealing the JR Decision. 

17.It is clear from the Board’s decision that the applicant’s claim was rejected on the issue of credibility as his evidence was vague, unsubstantiated and implausible, and his case was rejected on the facts.  It was perfectly open to the Board to reach its factual findings and conclusions, and the court would only intervene if there were valid public law grounds.  We do not see any in this case.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.   

18.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 24 May 2021.

The applicant, unrepresented, acting in person.