RE EHSAAN MUHAMMAD

CAMP 228/2020

[2021] HKCA 1027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 228 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 765 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By the decision dated 2 July 2020 (“the Decision”), Campbell-Moffat (“the Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 29 September 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”)  of 1 August 2016 and 22 May 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant lodged a summons on 9 September 2020 seeking an extension of time to appeal against the Decision.  The Judge heard the application on 13 November 2020 and by his decision of the same date (“the Leave Decision”), the Judge, having considered the length of delay, reason for the delay and underlying merits of his application, dismissed the applicant’s summons on the basis that it would not be in the interest of justice to grant an extension of time in this case.

3.  By a summons dated 2 December 2020, the applicant renewed his application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 19 January 2021, the applicant lodged his written submissions on 3 February 2021. 

4.  Under Order 59, rule 14A(1)  of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The Applicant is a national of Pakistan.  He entered Hong Kong illegally on 8 January 2016 and was arrested by the police on the same day.  He was then referred to the Immigration Department for investigation and on 11 January 2016, he raised a non-refoulement claim by way of written representation on the basis that if he were to return to Pakistan, he would be harmed or even killed by Mustafa due to a land dispute.  The factual background of this case was succinctly set out by the Judge at [4] of the Form CALL-1.[1]

6.  By the Notice of Decision dated 1 August 2016 and Notice of Further Decision dated 22 May 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].

7.  The applicant appealed the Director’s decisions to the Board and an oral hearing was fixed for 28 September 2017, however, he expressed that he did not want to answer any questions despite he was cautioned it would be difficult for the Adjudicator to make a favourable decision on the material alone.[6]  By its decision dated 29 September 2017, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons and analysis stated in [29] to [55] of its decision, the Board found that despite the applicant claimed to have suffered threats and assaults in the past over the land owned by his father, his father was not harmed.  Further, the applicant had continued to reside at his home for a period of about 2 years after the alleged incident and that is not consistent with his claims to be genuinely at risk of harm over the land dispute.  Moreover, his assertion that Mustafa is related to political party is not supported by independence evidence and by the fact that he was able to depart Pakistan unhindered which suggested that he is of no interest to the government or authorities in Pakistan.  For the aforesaid reasons, the Board concluded that the risk of harm to the applicant upon his return to Pakistan to be far-fetched and fanciful and his non-refoulement claim was dismissed on all applicable grounds.

The Judge’s decision

8.  On 13 October 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s decisions.   In his supporting affirmation, he said that he wanted to seek judicial review of the Board’s decision as it is unfair and unreasonable.  As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is not susceptible to judicial review once an appeal to the Board had been and dealt with.  Thus, the Judge had rightly treated the application as leave to apply for judicial review against the Board’s decision.

9.  The applicant did not request for an oral hearing and the Judge proceeded to consider the application on paper.  By her decision dated 2 July 2020, the Judge refused to grant leave to the applicant to apply for judicial review.  After summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [10] – [12] for her refusal to grant leave:

“10. There were no proper grounds of review. The applicant complained that the decisions were unfair and unreasonable without more. He has not complained of any specific 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 proper grounds of review, 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. Indeed, quite the opposite as the Adjudicator warned the applicant that he was at risk when the applicant refused to answer his questions. Despite the onus being upon the applicant, the Adjudicator attempted to engage in a joint endeavour with the applicant, which the applicant declined. He considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case on the papers appropriately. There is no criticism of his determination, which was open to him 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.”

10.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 16 July 2020).  By the summons filed on 9 September 2020, he sought an extension of time to appeal against the Decision. 

11.  The summons was heard on 13 November 2020 and by the Leave Decision, the Judge refused to grant an extension of time for the applicant to appeal the Decision.  On the issue of delay, the applicant accepted that he was late and gave no reason in his supporting affirmation. The Court file suggested that the address was not updated.  The applicant claimed that he only learnt of the refusal of leave from the immigration officer.  The Judge took the view that it is the duty of a litigant to give the Court an updated address to which correspondence or notice can come to his attention in a timely manner[7]and the consequences of any delay arising from failing to do so will fall upon the litigant.[8]  The Judge was not satisfied that the applicant provide any good reason for his delay.  More importantly, the applicant failed to provide any meaningful grounds and the Judge found no merit in the underlying application.  The Judge therefore refused the application for time extension, and dismissed the summons.

The renew application

12.  On 2 December 2020, the applicant filed a summons together with supporting affirmation to renew his application before this Court.  In his supporting affirmation, he advanced the following grounds:

(1)  He was unrepresented and did not have access to any legal advice.

(2)  He understands that it is not necessary to provide good ground of appeal at the stage of applying for leave for judicial review.

13.  In his written submissions, he quoted passages from ST v Director of Immigration[9][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submission further referred to section 37ZT of the Immigration Ordinance (Cap. 115)  and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.  However, he did not explain or elaborate how the legal authorities and provisions would apply and assist his case.

Applicable Legal Principles

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 prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted.

15.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

16.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1)  of the Rules of the High Court (Cap. 4A). 

Discussion

17.  The applicant was late for almost 8 weeks in taking out the summons for an extension of time to appeal the Decision.  The delay was not insignificant and we agree with the Judge that the applicant failed to provide good reason for his delay.  

18.  Thus, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted, see: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

19.  In our judgment, his intended appeal is devoid of merit and his grounds of appeal as set out in his supporting affirmation and the written submissions are general and bare assertions without pinpointing any error of law or raising any discernible grounds for this Court to reverse the Decision. 

20.  In this case, the applicant’s case was rejected by the Board as the applicant failed to establish his case on all applicable grounds.  Noting he was unwilling to answer questions and provide details to his case and even on the paper evidence provided by the applicant, he only suffered minor injuries over a significant period of time after the alleged assault and threat from Mustafa, the Board did not find any real risk of harm if he were to return to Pakistan.  It is perfectly open for the Board to reach its findings and conclusions which is justified and eminently reasonable.

21.  We are also satisfied that the Judge had reviewed the Board’s decision carefully and we find nothing amiss from the Decision.  

22.  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 2 December 2020 is dismissed accordingly.