RE HOSSAIN AKHTAR

CAMP 294/2021

[2022] HKCA 99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 294 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1743 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 18 June 2020[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 17 August 2018. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 17 August 2015 and 21 June 2017 rejecting the applicant’s non-refoulement claim.

2.  On 12 July 2021, the Judge refused to extend the time for the applicant to appeal against the Judge’s decision of 18 June 2020.[2]

Background

3.  The applicant is an Indian national. He arrived in Hong Kong as a visitor on 20 October 2014 and was permitted to remain for 14 days. He did not depart, and has overstayed. He was arrested by police on 17 December 2014, and lodged his non-refoulement claim on 18 December 2014. He was subsequently released on recognizance.

4.  The applicant is a Sunni Muslim. His claim was based on the fear that, if he returned to India, he would be harmed or even killed by a creditor called Aftab, who is a Shia Muslim and a member of the Trinamool Congress party in India. The factual background was set out at paragraphs 2 to 3.5 of the Board’s decision.

5.  By notices of decision dated 17 August 2015 and 21 June 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The former covered BOR 3 risk,[3] persecution risk[4], and torture risk;[5] the latter covered BOR 2 risk.[6]

6.  The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 28 June 2018, during which the applicant answered questions from the Board. The Board did not accept that Aftab was interested in locating the applicant all over India and found that the applicant had not suffered any severe pain or suffering or any serious harm. Moreover, the Board considered the applicant’s evidence to be unreliable, and found that internal relocation was viable.

7.  Thus the Board found that there was no real risk of harm in the event of refoulement, and dismissed the applicant’s appeal on 17 August 2018 in respect of all applicable grounds.

The Judge’s decisions in the court below

8.  On 27 August 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his supporting affirmation, the applicant stated that he did not want to go back to his country because his life was still in danger there.

9.  Following a hearing on 23 January 2020 attended by the applicant, on 18 June 2020 the Judge refused to grant leave to apply for judicial review, the reasons for which were set out at [14] – [17] of the Form CALL-1 as follows:

“ 14. The Applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. The duty lawyer had explained the Director’s Decision to him and the interpreter of the Board had explained the Board’s Decision to him. He had no comments on the Board’s findings.

15. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.

17. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

10.  On 3 July 2020, the applicant took out a summons to seek an extension of time to appeal against the decision of the Judge. In his supporting affirmation, the applicant explained that he did not receive the judgment in his mailbox.

11.  In his decision dated 12 July 2021,[7] decided on paper without an oral hearing, the Judge refused to grant an extension of time to appeal as he did not see any prospect of success in the intended appeal, and dismissed the summons.

The renewed application before this Court

12.  On 28 July 2021, the applicant took out a summons seeking an extension of time from this court to appeal against the decision of the Judge refusing to grant leave for judicial review. He did not set out any grounds of appeal in his summons or supporting affirmation, which simply stated that an appeal would be out of time and asked this court to give him time.

13.  The applicant lodged his written submissions on 11 August 2021, in which he stated that he has a very big problem in his country, and referred to the procedural history of his claim. He also reiterated that he did not receive the Judge’s decision refusing to grant leave for judicial review. Again, he did not state any grounds of appeal.

Discussion

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

15.  We consider it appropriate to determine this application on the papers without an oral hearing.

16.  The applicant made an application to the Judge below for extension of time to appeal on 3 July 2020, which was late by 1 day. As the delay was very short, we have proceeded to decide the present application on the basis of the merits of the intended appeal.

17.  In the present case, the Board rejected the applicant’s non-refoulement claim for the reasons that the applicant had not suffered any severe pain or suffering or any serious harm, that his evidence was unreliable, and that internal relocation was in any event viable. On this basis the Board found that there was no real risk of harm in the event of refoulement. These findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. No such grounds have been raised by the applicant.

18.  Further, this court will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there are no grounds raised that point to any error by the Judge, the appeal should be dismissed.

19.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

20.  For these reasons, we do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The summons dated 28 July 2021 is accordingly dismissed.