Case Detail

HCAL 921/2017

[2021] HKCFI 1322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 921 OF 2017

________________________

RE:

SAIDY LAMIN IA

Applicant

________________________

Before:

Hon Campbell-Moffat J in Chambers

Date of Hearing:	7 May 2021
Date of Decision:	7 May 2021

________________________

D E C I S I O N

________________________

Introduction

1. This is an application dated 4 January 2021 to appeal my decision of 19 May 2020 refusing leave to apply for judicial review. The applicant had 14 days in which to apply to appeal that decision. He did not do so. He now requires leave to extend time to appeal against that order. The applicant attended the Court without the benefit of an interpreter as he speaks excellent English.

Procedural Background

2. The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. He entered Hong Kong lawfully on 27 July 2014 but thereafter overstayed. He surrendered to the Immigration Department on 27 October 2014. He submitted a non-refoulement claim on 13 April 2017 and was interviewed by the Director of Immigration (“the Director”) on 17 May 2017. The Director dismissed his claim under all heads, by Notice of Decision on 25 May 2017. He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Susan Marie Pinto, heard his appeal on 19 September 2017 and refused it in a 21-page decision on 10 October 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 21 November 2017 and did not request an oral hearing. The matter was therefore considered on the papers. His application for leave to apply for judicial review was refused on 19 May 2020. He had 14 days from that date to appeal that decision which would have expired on 2 June 2020. By way of summons dated 4 January 2021, he seeks leave to appeal out of time.

4. An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)). The applicant may appeal as of right. However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days. Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 2B(6). The court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

5. In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.

6. Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time. The applicant accepted he was late and gave no reason within his Affidavit as to why that was the case other than to say that he did not receive the letter. The Court file suggests that it was properly served upon the address given at that time and which he confirmed was the address at which he was living for the purposes of delivery of the letter. However, the applicant maintained that it was the type of address which did not have a letter box and did not lend itself to the delivery of mail. He had provided no other address to which any correspondence could be sent. He has since moved address and can receive correspondence. As a result, the applicant maintains that he only learnt of the refusal of leave in January 2021, which I have difficulty believing. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner[2]. The consequences of any delay arising from failing to do so will fall upon the litigant[3].

7. Even if the Court does accept that the explanation given for the delay is a reasonable one, the Court is required to examine whether there is any merit in the applicant’s appeal[4]. Whether there is any such merit will depend upon well-established legal principles[5] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim. The procedure on judicial review was explained at length. The applicant is the holder of a law degree and fully understood that the merits of his claim had been dealt with below and that judicial review was a quite separate form of action. He submits that he should have been allowed to be heard upon the leave application and that the Form 86 does not provide for any place in which the applicant can indicate they wish to be heard in person. The opportunity to ask for an oral hearing only appears within the notes for guidance and is not easily understood. This point apart, the applicant had no grounds of appeal against this court. The question for the court is whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].

8. The applicant has now been in Hong Kong since 2014. He has been interacting with various government agencies since that date. The explanation he has offered to this court, as to why he did not receive the order is not acceptable. Despite the fact that he is a lawyer and erudite, he wholly missed the opportunity to be heard because of the manner in which applicants are assisted with the Form 86. I accept that he misread the contents. There is an arguable injustice as to the manner in which applicants from foreign jurisdictions are informed of their right to an oral hearing and as such I will give leave to appeal.

9. The applicant’s summons dated 4 January 2021 be allowed and I will grant the application extending the time for 14 days from this order for him to file the Notice of Appeal.

	(A P Campbell-Moffat)
	Judge of the Court of First Instance High Court

The applicant appeared in person

[1]Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016)

[2]Re Ahmed Zakar CAMP 17/2019, [2019] HKCA 566

[3]Islam Raja Rais v Director of Immigration HCMP 881/2017

[4]Re Mehmood Ikhlas CAMP 28/2019, [2019] HKCA 567; Re MK HCMP 2609/2016; Re Gurung Min Bahadur[2018] HKCA 226

[5]Nupur Mst v Director of Immigration[2018] HKCA 524; Re Md Shohel Sheak[2018] HKCA 714

[6]Re Ansar Muhammad[2018] HKCA 227

HCAL 921/2017

[2020] HKCFI 855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 921 OF 2017

BETWEEN

	Saidy Lamin IA	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the Applicant being present/absent in open court

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1. The applicant entered Hong Kong legally on 27 July 2014 and thereafter overstayed. He surrendered to the Immigration Department on 27 October 2014. The applicant submitted a non-refoulement claim by way of written representation on 10 November 2014. His non-refoulement claim form was submitted on 13 April 2017.

2. The applicant attended a screening interview on 17 May 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 25 May 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Susan Marie Pinto (“the Adjudicator”), heard his appeal on 19 September 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 but refused his appeal on 10 October 2017.

Background

4. The applicant is a Gambian national. He was born on 24 January 1986, in Brikama and has a national diploma in law. He is a Muslim, single and can speak and write English. Between 2005 and 2011, the applicant worked as a legal assistant but thereafter operated a timber business with his brother and worked part-time as a legal assistant. The applicant was actively involved advocating legal rights and freedoms. In 2008, he hosted a local radio programme about youth policy and justice. There came a point in time in 2012, when the applicant openly criticised the actions of the government when they executed several death row prisoners. In July 2014, the applicant left Gambia on business to China. Whilst in China, he was made aware that government secret agents were looking for him. In order to remain outside of Gambia, the applicant utilised funds belonging to his brother, which should have been used in the business. His brother was angry with him about this and threatened to kill him. He decided to come to Hong Kong to seek protection because it has a trusted legal system but waited three months for his visa to expire before he did so.

The non-refoulement claim

5. Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.
ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state. The level of such mental or physical torture etc. must reach a minimum level of severity.
iii. Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). Under persecution risk, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.
iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6. It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim. The Director and the Adjudicator must then assess the level of harm the applicant says he fears. Each ground of claim above has a relevant level of risk. It is for the applicant to establish that he is the subject of such risk. Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”. The question is whether there is a real riskor real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Director

7. The applicant seeks to review the decisions of both the Director and the Adjudicator. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with.

Decision of the Adjudicator

8. The Adjudicator analysed the applicant’s claim on all applicable grounds. She arranged for an oral hearing and treated the appeal as a rehearing. She pointed out that since his departure the new government has set up a Truth and Reconciliation Commission but the applicant felt the government in Gambia was still unstable. He submitted additional documentation, which the Adjudicator considered, and he accepted that he had not personally been approached by any government agent. He explained that his brother suffered from a mental illness and that he intends to repay his brother by selling some properties although he had not yet done so. Having heard his evidence, the Adjudicator did not accept that the Gambian government or its security agencies had any adverse interest in the applicant at the time he left Gambia so as to suggest he might be harmed by them should he return. Nor did she accept that the applicant would be harmed by his brother. She explained her reasoning in some detail. Accordingly, the Adjudicator found he had not established his claim to the requisite standard.

Leave to apply for judicial review

9. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decision of the Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10. There were no grounds of review. The applicant seeks a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any grounds of review (which is a surprise as he has legal experience), I have considered the papers carefully. I have not found any error of law or procedure by the Adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. The Adjudicator gave extensive and detailed reasons for her findings and found the witness to be less than credible and therefore inter alia had not established his case. There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.

Dated the 19^th day of May 2020.

	(Marcus Wong)
	for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence.

Notesfor the Applicant: If leave has been refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 19 May 2020 Saidy Lamin IA Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19 May 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7397/17/6/93/GA50 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: QA T/C 692/17 (formerly RBCZ 3002284/14) (T3S28)

Form CALL-1

RE SAIDY LAMIN IA

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