Ly Rahamane v. Torture Claims Appeal Board

CAMP 244/2022

[2022] HKCA 1425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 244 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 103 OF 2019)

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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 12 July 2022, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 14 December 2021 (“the Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 22 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 April 2018.

2.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

3.The Applicant is a national of Guinea. He last arrived in Hong Kong on 28 November 2018 as a visitor with permission to remain up to 12 December 2018. He did not depart and instead overstayed. On 15 December 2018, he surrendered to the Immigration Department and raised a non-refoulement claim alleging that, if refouled, he would be harmed or killed by supporters of a political party known as Rally of the Guinean People (“RPG”) because he supported a rival political party known as Union of Democratic Forces of Guinea (“UFDG”). Details of the Applicant’s claim have been summarised by the Judge at §§1-3 of the CALL-1 Form ([2021] HKCFI 3745).

4.By a Notice of Decision dated 30 April 2018, 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].

5.The Applicant appealed the Director’s decision to the Board. On 22 October 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §7 of the CALL-1 Form, as follows:

“In its decision the Board found that even on the Applicant’s own case that he left Guinea in August 2012 owing to the bad situation in the country without any evidence of any threats being directed against him other than hearsay from a friend when he had already been out of the country for more than 3 years, and given that he was not anybody with any official post in UFDG other than just an ordinary supporter that there is no reason for the RPG people or the Guinea authorities to have any interest in him that it concluded that the Applicant would not face any genuine or substantial risk of harm from anyone upon his return to Guinea that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

6.On 10 January 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

7.On 14 December 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[8] On 10 January 2019 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 merely repeated his claim of fear of harm from those RPG people in Guinea as before but without providing any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such 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 reasonably arguable basis for his intended challenge.

[10] 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 35 – 56 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.

[11] The fact is that it has been established by the Director in his decision 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, a decision 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.

[12] 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.”

8.On 29 June 2022, the Judge refused the Applicant’s application by summons dated 6 January 2022 for an extension of time to appeal against the Order, holding that his intended appeal did not have any prospect of success.

THIS APPLICATION

9.By a summons taken out on 12 July 2022, the Applicant applied for an extension of time to appeal against the Order. In his supporting affirmation filed on 5 August 2022, the Applicant stated that the grounds of his application were: (1) the Judge was wrong in law in holding that there was no state acquiescence or involvement; and (2) the Judge failed to provide detailed reasons in support of his decision.

10.In his 5-page written submissions dated 21 July 2022, the Applicant repeated the factual basis of his non-refoulement claim, and explained why he could not return to his home country.

DISCUSSION

11.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.

12.The prospect of success of an 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.

13.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. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

14.Further, the 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

15.The matters raised in the Applicant’s Affirmation and submissions are essentially repetitions of the basis of his non-refoulement claim. The complaint that the Judge was wrong in law in holding that there was no state acquiescence or involvement in the threat or possibility of harm against the Applicant in Guinea is difficult to follow, since the Judge made no such finding in his decision. In any event, assessment of country of origin information was primarily within the province of the Director and the Board, not of the Judge. The suggestion that the Judge failed to provide detailed reasons for his decision is plainly without substance. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 14 December 2021, and has failed to raise any viable ground of appeal against the Order.

16.There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

17.The application for extension of time to appeal is refused, and the Applicant’s summons of 12 July 2022 is dismissed.

The Applicant, acting in person