Re Diallo Mamadou Bailo

CAMP 92/2022

[2022] HKCA 858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 92 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1159/2018)

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J U D G M E N T

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

1.This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”)  dated 15 December 2021 refusing to grant leave to the applicant to apply for judicial review out of time. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 16 November 2017 (“the Board’s Decision”)  dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  dated 17 August 2015 and 12 June 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”).

Background

2.The applicant is a national of Guinea. He entered Hong Kong on 1 June 2010 with permission to remain until 22 June 2010.  He overstayed and was arrested by the police on 21 August 2011.  The applicant thereafter lodged a torture claim (later processed as a non-refoulement claim)  on 24 August 2011.

3.The applicant’s claim was based on a fear of being harmed or killed by the Muslims of his home town by reason that he is a Christian.  The details of the applicant’s claim have been summarised by the Judge at [2] and [3] of his decision (“the CALL-1 Form”)[1].

4.By Notices of Decision dated 17 August 2015 and 12 June 2017, the Director decided against the applicant’s claim.  The Director’s Decisions covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.The applicant appealed to the Board.  After a hearing on 26 September 2017, the Board dismissed the appeal on 16 November 2017.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board essentially concluded that the applicant was unable to substantiate his claim by reason of doubts as to his credibility as a witness.

The Judge’s decision

6.The applicant filed a Form 86 on 21 June 2018, more than 4 months out of time, seeking to judicially review the Board’s Decision, but without setting out any grounds of review.  In his supporting affirmation, he stated that he was unable to submit some documents in support of his non-refoulement claim.

7.After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review out of time.  The Judge gave the following reasons in refusing leave to apply for judicial review at [9] to [18] of the CALL-1 Form:

“9.  On 21 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he is not satisfied with the decision without putting forth any proper ground for his intended challenge, nor did he attend the hearing of his application without any explanation.

10.  By then the Applicant was also out of time with his application, as 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 filed.

11.  As the last day of the three-month period for him to file his Form 86 fell on 16 February 2018, the Applicant was therefore more than 4 months late with his application, and in considering whether to extend time, the court shall 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: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay or more than 4 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation or to attend the hearing to do so, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his serious delay.

13.  As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42-56 of its decision on the basis of the materials and information available in view of his failure to attend the hearing without any explanation or to identify any error of law or procedural unfairness in his process before the Board or in its decision, I do not find any reasonably arguable basis to challenge the findings of the Board.  

16.  The fact is that it has been established by the Director in his decisions that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Guinea, decisions also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

The present application for extension of time to appeal

8.The applicant’s address as stated in his Form 86 was in Sheung Shui (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 15 December 2021.  This letter was not returned undelivered.

9.Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 15 December 2021.   

10.By a letter dated 25 January 2022, the applicant informed the court that he had been in detention at Hei Ling Chau Correctional Institution from 2 August 2021 to 2 December 2021, and thereafter he was detained at an Immigration Centre at Tuen Mun.  Therefore, he claims he was unable to lodge an appeal in time. 

11.The applicant then took out a summons in the Court of First Instance on 8 February 2022 seeking an extension of time to appeal.  He stated in the supporting affirmation that the reason for the delay in his lodging of the intended appeal was that he was serving prison sentences and that he was unaware of the relevant procedural rules.

12.The applicant’s application to appeal out of time was dismissed by the Judge on 16 March 2022[6], who held:

“4. In the Applicant’s case, a delay of almost 6 weeks must be considered as substantial or inordinate, for which he explained at the hearing of his summons that he was at that time serving a prison sentence in Hei Ling Chau Correctional Institution and never received the decision which was sent to his residential address in Sheung Shui, and that it was his wife who later informed him of the decision, but as he was then in prison and was thereafter transferred to the Castle Peak Bay Immigration Centre (‘CIC’)  where he was able to find help for the necessary documents for his appeal, but by then he was already out of time with his intended appeal.

5. The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and even accepting that the Applicant was then indeed in incarceration with the inevitable restrictions on incoming and outgoing mails and in assessing legal assistance, I am not satisfied that they would constitute good enough reasons for his such serious delay.

6. More importantly, the Applicant has failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or his affirmation in which he just stated that the decision was reached unfairly without providing any details or particulars as to how it was so, nor was he able to do so at the hearing of his summons other than that he now has a family here in Hong Kong that he does not want to leave. As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

7.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.”

13.By a summons filed on 12 April 2022, the applicant renewed his application for an extension of time to appeal before this court.  The applicant repeated his submissions before the Judge in respect of the summons filed on 8 February 2022.

14.The applicant, in breach of the directions of the Registrar of Civil Appeals, failed to lodge written submissions on or before 26 April 2022.  

15.The applicant lodged his submissions late, on 10 May 2022.  Given that the delay is not substantial, we have in this case nonetheless proceeded to consider his written submissions, which merely referred to the well-established principles in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

Discussion

16.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.The applicant claimed that he was serving a prison sentence and therefore the deadline for appeal was missed.  However, as observed by the Judge, even if this was the case, the Judge’s decision dated 15 December 2021 was sent to the Address unreturned on the same day, it was therefore reasonable to infer that it was brought to his knowledge in some way. 

18.Even if in the circumstances of this case we are of the view that there is some reasonable explanation for the applicant’s delay in bringing the intended appeal, as the Judge noted, it is incumbent upon the applicant to establish a sufficient prospect of success in his intended appeal in order for time to be extended.

19.We therefore proceeded to consider the merits of the intended appeal.

20.The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

21.The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

22.Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)  & (4)]. 

23.The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

24.As to the applicant’s complaint that he was unfamiliar with the relevant procedural rules in respect of an application for leave to appeal, ignorance of legal procedure or rules is not an excuse or justification for not complying with the same.

25.Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the processing of his non-refoulement claim.

26.For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 12 April 2022 is accordingly dismissed.

The applicant acting in person