RE ASHRAF NAIM

CAMP 273/2022

[2023] HKCA 374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 273 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1323/2021)

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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 29 October 2021 refusing to extend time for the applicant to apply for leave for judicial review and dismissing his leave application. The intended judicial review was against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 24 November 2016 and 12 March 2020 (“the Board’s Decisions”), respectively dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 30 September 2014 and 13 January 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”).

Background

2.  The applicant is a national of India. He entered Hong Kong on 19 April 2008 as a visitor, but he overstayed and was arrested by the police on 6 May 2008.  On 17 May 2008, he lodged a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditor.  The details of the applicant’s claim have been summarised by the Judge at [1] to [3] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision and a Notice of Further Decision respectively dated 30 September 2014 and 13 January 2017, the Director decided against the applicant’s claim.  The Director’s Decisions covered the torture risk[2], the persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  The Board fixed two hearings in respect of the applicant’s appeals against the Director’s Decisions on 31 July 2015 (which the applicant failed to attend without explanation) and on 12 December 2019 (which the applicant attended but elected not to give evidence).  The Board dismissed the applicant’s appeal by its Decisions.  In dismissing his appeal against the Director’s Decisions, the Board found that the applicant’s claimed fear of harm or such a risk of harm had not been established by the evidence, and even if such risk existed, it would be substantially reduced by state protection or if he relocated internally in India.

The Judge’s decision

6.  The applicant filed a Form 86 out of time on 23 September 2021 seeking to judicially review the Board’s Decisions, wherein he claimed that he was never informed of the Board’s Decisions.

7.  In his supporting affirmation, the applicant stated that he disagreed with the Board’s finding on the availability of internal relocation, and claimed that the “risk” still exists for him in India and that if he returned his life would be in danger.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to extend time for the applicant to apply for leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [20] of the CALL‑1 Form:

“12.   On 23 September 2021 the Applicant filed his Form 86 for leave to apply for judicial review of both decisions of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just repeated his claim that his life would still be in danger in his home country and complained that the Board failed to consider properly the risk that he had face before he departed India and which he would face again if returned to India but without providing any further details or particulars or elaboration of how it did so, nor did he request any oral hearing for his application.

13.  By then the Applicant was also seriously out of time with his application regarding either decisions of the Board, 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 made. 

14.  As the last day of the three-month period for him to file his Form 86 regarding the later second decision of the Board fell on 12 June 2020, never mind the much earlier first decision of more than 4 years ago, the Applicant was still more than 15 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.

15.  In the Applicant’s case, a delay of more than 15 months must be considered as extremely substantial and excessive, for which he failed to provide any explanation in his supporting affirmation, 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 or valid reason for his such serious delay.

16.  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 of either decisions of the Board, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

17.  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.

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

19.  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.

20.  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

9.  The applicant’s last known address in his Form 86 was at the Castle Peak Bay Immigration Centre.  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 Castle Peak Bay Immigration Centre on 29 October 2021, but this was however returned undelivered.

10.  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 29 October 2021.

11.  The applicant thereafter took out a summons in the Court of First Instance on 10 December 2021 seeking extension of time to appeal, in which his address was stated to be at 174 Ki Lung Street, Sham Shui Po (“the Address”).  In his supporting affirmation filed on the same date, he claimed that he did not receive any correspondence from the court, that the Judge’s decision had been reached unfairly and that being an unrepresented litigant, he was unaware of “the rules regarding 14-days time limit”.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 13 July 2022[6].

13.  By a summons filed on 25 July 2022, the applicant renewed his application for an extension of time to appeal before this court.  In his supporting affirmation, the applicant repeated the matters he had stated in his affirmation filed in the application for extension of time before the Judge.

14.  In his written submissions lodged on 8 August 2022, the applicant 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

15.  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.

16.  Notwithstanding that the Judge’s decision sent to the applicant at Castle Peak Bay Detention Centre was returned undelivered, he failed to provide particulars of his period(s) of detention, nor did he promptly inform the court of his updated address (i.e. the Address) after he was released.  Moreover, he did not elaborate on how and when he had learned of the Judge’s decision.

17.  The burden is on the applicant to inform and update the court as to his most recent correspondence address without delay, and he must bear the consequences of failing to do so.

18.  In the circumstances, we reject the applicant’s explanation for the delay in lodging his intended appeal.

19.  We have nonetheless proceeded to consider the merits of the intended appeal.

20.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decisions, or how such Decisions could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  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.

22.  As to the applicant’s complaint that he was ignorant of the procedural rules due to the lack of legal representation, we do not accept this as a reason for the applicant not to comply with the same, and it is well-established that the high standards of fairness applicable do not require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

23.  It is also well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

24.  There was also 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.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 25 July 2022 is accordingly dismissed.