RE DARAMOLA LOUKMAN MOUNIRU

CAMP 13/2020

[2020] HKCA 630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 13 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 136 OF 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 11 June 2020, this Court (Chu and Barma JJA) handed down our judgment^[1] (“the Judgment”) refusing to give leave to the applicant to appeal the decision of Deputy High Court Judge Bruno Chan given on 3 October 2019 dismissing his application for leave to apply for judicial review.

2.  On 29 June 2020, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission to support his application. 

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the papers before us.

4.  The notice of motion did not set out any proposed grounds of appeal.  It only stated that the applicant did not agree with this Court’s decision and wanted to go to the Court of Final Appeal to get justice.

5.  The written submission is substantially the same as the written submission lodged on 21 April 2020 in support of the application made to this Court for leave to appeal.  It additionally complained that the Board acted in a procedurally unfair manner, failed to properly assess the applicant’s credibility and had relied on “source of news which is not officially recognised or is simply hearsay”.  It also argued that the Court has failed to apply the principles of irrationality and procedural fairness.      

6.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

7.  The matters put forward in the notice of motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  First, they all relate to the applicant’s personal circumstances and his claim, and do not involve any question of great general or public importance.  Second, for the reasons we gave at paragraph 16 of our judgment, the arguments put forward in the written submission are unarguable.  Third, the additional complaints levelled against the Board were not raised as a ground for judicial review before the Judge or in the application for leave to appeal made to this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the application before it.[2]  Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  As the statutory requirement for giving leave to appeal are not met, we dismiss the notice of motion.

CAMP 13/2020

[2020] HKCA 462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 13 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO.136 of 2018)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s further application for leave to appeal against the decision of Deputy High Court Judge Bruno Chan (the “Judge”) dated 3 October 2019 refusing to extend the time for him to apply for leave to apply for judicial review. The applicant’s previous application for leave to appeal was refused by the Judge on 14 January 2020.

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

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the summons, the affirmation and the written submission filed by the applicant, 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”) dated 13 July 2017 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 22 November 2016 rejecting his non-refoulement claim.

5.  The applicant is both a citizen of both Sierra Leone and South Africa.  He entered Hong Kong on 26 November 2015 and was permitted to remain as a visitor until 26 December 2015. He overstayed and surrendered to the Immigration Department on 28 December 2015. He later raised a non-refoulement claim based on his fear of being harmed or killed by (1) the xenophobia people if he were to return to South Africa, and (2) the supporters of Sierra Leone People’s Party if he were to return to Sierra Leone because his father had switched allegiance to the rebel group, Revolutionary United Front, during the civil war.  The details of the applicant’s claim were set out in the decisions of the Director and the Board and summarised by the Judge in the Form CALL-1 dated 15 October 2019[1] at [2] to [7]. We will not repeat them.     

6.  By his decision, the Director rejected the applicant’s claim on the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] grounds.

7.  The applicant’s appeal to the Board was heard on 18 May 2017.  By its decision dated 13 July 2017, the Board dismissed the appeal.  The Board found the applicant’s evidence credible and truthful in relation to his situation in Sierra Leone and the reasons for his family’s fleeing from the country in 1992.  Having regard to an announcement of the United Nations High Commissioner for Refugees in June 2008 and Human Rights Watch reports as well as the applicant’s personal circumstances, the Board considered there was no reason to believe the applicant would experience any serious harm as a result of his father’s activities 25 years ago.  The Board concluded that the applicant failed to establish a real risk of any form of serious harm in Sierra Leone. This being the case, it was not necessary for the Board to further assess his claim with regard to his situation in South Africa because as a national of two States, the applicant could only succeed in his claim for international protection if he could establish a relevant risk in both States.

8.  Under Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall 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 to extend the time for bringing the application.  In the present case, the three months’ period began to run from 13 July 2017, being the date of the Board’s decision.

9.  However, it was only on 29 January 2018 that the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  The delay was 108 days.  In the Form 86 and the supporting affirmation, the applicant gave no explanation for the delay.  He also did not set out any ground for seeking relief.  He only contended that it would be unsafe and dangerous for him to return to his country.

10.  By the Form CALL-1 dated 3 October 2019, the Judge refused to grant an extension of time and dismissed the application for leave to apply for judicial review.  Principally, the Judge considered that the applicant had given no explanation for the delay, which was substantial, and he also did not put forward any arguable ground or identify any legal error or procedural irregularity in the Board’s decision such that there was no prospect of success in his intended judicial review.

11.  By summons filed on 15 October 2019, the applicant applied to the Judge for leave to appeal the Judge’s refusal to extend time and dismissal of his application for leave to apply for judicial review.  By his decision handed down on 14 January 2020,[6] the Judge refused to give leave to the applicant to appeal.  On 20 January 2020, the applicant filed the present summons to make a further application to this Court for leave to appeal.

12.  Under section 14AA(4) of the High Court Ordinance, Cap. 4, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.

13.  When the applicant filed his Form 86, he was out of time by more than three months.  As the Judge rightly pointed out, the delay was substantial.  The applicant had neither explained the delay nor identified any ground for seeking relief in his application for leave to apply for judicial review.  The Judge had nevertheless gone on to examine the decision of the Board and found there was no error of law or procedural unfairness or failure to adhere to the high standard of fairness in assessing the applicant’s claim.  The Judge concluded that the intended judicial review application had no prospect of success.  He therefore refused to extend time and dismissed the application.      

14.  In the present application, the applicant did not set out any proposed ground of appeal in his summons and his supporting affirmation.  He only stated in his affirmation that he was not satisfied with the decision, that he had proof and evidence that his life would be in danger, and he still remembered how his mother was killed and he did not wish that to happen to him.  He also exhibited copies of Internet reports of violence and shooting in South Africa to his affirmation.            

15.  In his written submission, the applicant argued that: (1) high standards of fairness are required considering that the applicant’s life is in jeopardy, his fundamental right not to be subjected to torture is at stake and the decision has the effect of finally disposing of his claim rendering him liable to be removed; (2) the Board acted in a procedurally unfair manner in dealing with his case without properly assessing his credibility; (3) an administrative body’s decision could be set aside if it is Wednesbury unreasonable; and (4) under section 37ZT of the Immigration Ordinance, Cap. 115, the Board in dealing with late filing of notice of appeal may consider the reasons stated in the application and the accompanying supporting documents, as well as any other relevant matters.  

16.  For the reasons given below, we are of the view that the applicant’s intended appeal against the Judge’s refusal to extend time has no prospect of success:

(1)  In coming to his decision not to extend time for the applicant to apply for judicial review, the Judge had taken into account all the relevant factors (see [10] to [15] of the Form CALL-1).

(2)  The applicant has not identified any error in the Judge’s reasoning and decision. 

(3)  It would appear that the applicant’s assertion that his life would be in danger was a reference to the situation in South Africa. This assertion is irrelevant given the Board’s conclusion that, with the fundamental and durable changes that have taken place in Sierra Leone since the applicant’s family’s departure 25 years ago, the applicant should not be at risk to return to Sierra Leone.

(4)  The arguments in the written submission are general propositions. It has not been shown how they relate to the applicant’s case.  The assertion of unfairness in the Board’s assessment of the applicant’s credibility is clearly misplaced because the Board in fact found the applicant credible and accepted his claim regarding the situation in Sierra Leone.  Likewise, the reference to section 37ZT of the Immigration Ordinance is also misplaced since the section relates to delay in appealing to the Board and the applicant’s appeal to the Board was not late.   

17.  We also do not find any other reason for the appeal to be heard.

18.  Accordingly, we dismiss the applicant’s summons filed on 20 January 2020. 

The applicant, unrepresented, acted in person.