Re Mendes Nelson

CAMP 541/2021

[2022] HKCA 467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 541 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1562 OF 2018)

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Before: Hon Chu and Barma JJA in Court

Date of Judgment: 1 April 2022

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JUDGMENT

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

1.This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 4 August 2020 dismissing his application for leave to apply for judicial review.

2.The applicant has filed an affirmation and also lodged a written submission in support of his application.

3.Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against two decisions of the Director of Immigration (“the Director”) rejecting his non-refoulement claim.

5.The applicant is a national of Bissau-Guinea aged 52. He last arrived in Hong Kong on 20 June 2009 and was given permission to remain as a visitor for 14 days. He overstayed and was arrested by the police on 4 September 2009. He later raised a non-refoulement claim based on fear of being harmed or killed by his paternal uncle due to a dispute over his late father’s property which included a house and some farmland. The details of the applicant’s claim were set out in the Director’s decision at [7]. We will not repeat them.

6.By two decisions dated 4 May 2015 and 27 June 2017, the Director rejected the applicant’s claim. The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds, and the further decision dealt with the BOR 2 risk[4] ground.

7.The applicant’s appeal to the Board was heard at an oral hearing held on 26 March 2018. By its decision dated 30 July 2018, the Board dismissed the appeal. The Board had doubts and reservations about the credibility of the applicant’s claim. Even on the facts put forward by the applicant, the Board found he has not suffered serious ill-treatment or severe injury or serious harm, and there was no evidence that he would face substantial risk of harm. The Board further found state protection and internal relocation alternatives were reasonably available. The Board concluded that the applicant failed to establish that he was entitled to non-refoulement protection under any of the applicable grounds.

8.On 7 August 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. In the supporting affirmation, the applicant did not provide any grounds in support of his application. He only stated in his affirmation that his uncle is after him and wants to kill him because of his father’s property.

9.The Judge heard the application at an oral hearing. By a Form CALL-1 dated 4 August 2020[5], the Judge refused the application for leave to apply for judicial review. In brief, the Judge considered the Board was entitled to come to make adverse finding on the applicant’s credibility and to take the view that internal relocation was an option open to him. The Judge found no error of law or procedural unfairness in the Board’s decision and there was no reasonably arguable basis to challenge the Board’s findings on the grounds of irrationality. The Judge therefore concluded that the intended judicial review had no reasonable prospect of success.

10.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 14 September 2020[6].

11.By a summons filed on 10 November 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper and by his decision handed down on 2 November 2021[7], he dismissed the application.

12.On 30 November 2021, the applicant filed the present summons together with an affirmation to make a further application to this Court for extension of time to appeal.

13.In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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.The applicant was almost two months late when he filed the 10 November 2020 summons. The delay is not insubstantial. The applicant stated in the summons that he did not receive the court’s decision. We note from the court record that the Form CALL-1 and the Judge’s order were mailed to the address provided by the applicant, and had not been returned by the post office. We therefore have reservations as to the explanation given by the applicant in the summons, especially when he had not deposed to or elaborated on it in his affirmation. We would next turn to consider the prospect of the intended appeal.

15.In considering the merits of the intended appeal, we 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 judge’s decision, 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.

17.In the present application, the applicant did not provide any ground in support of his intended appeal in either the summons or the affirmation.

18.In the written submission, the applicant said he came from Nigeria. He claimed that he fled to Hong Kong because his enemy was united, wealthy and well trained whereas he only had popular support. He further claimed that his enemy planned to kill him so as to control the society since he was the only “voice” against them.

19.In our view, the matters put forward in the written submission do not contain viable grounds of appeal against the Judge’s decision. Firstly, the assertions made in it appeared to be different from the basis of the applicant’s non-refoulement claim advanced before the Director and the Board. Secondly, they do not engage the reasons given by the Judge for refusing to give him leave to apply for judicial review. Thirdly, they do not show any errors in the Judge’s reasons and decision.

20.We have in any event examined the Board’s decision. We agree with the Judge that there is no reasonably arguable basis for challenging its finding and the reasons do not show any error of law, irrationality or procedural irregularity.

21.As the applicant’s intended appeal against the Judge’s refusal of leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 30 November 2021.

The applicant, unrepresented, acted in person.