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CAMP 302/2022
[2023] HKCA 373
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 302 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 449/2019)
____________________
| RE: |
Akhtar Naeem |
Applicant |
____________________
| Before: |
Hon Barma JA and Au JA in Court |
| Date of Judgment: |
28 March 2023 |
___________________
J U D G M E N T
___________________
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 To (“the Judge”) dated 18 May 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was purportedly against (1) the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 12 February 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 28 February 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”); and (2) the Director’s Decision itself.
Background
2. The applicant is a national of Pakistan. He entered Hong Kong on 7 February 2016 illegally and was arrested by the police on the same day. On 9 February 2016, he lodged a non-refoulement claim.
3. The applicant’s claim was based on a fear of being harmed or killed by members of the Muslim League Noon by reason of a political dispute. The details of the applicant’s claim have been summarised by the Judge at [6] to [15] of his decision (“the CALL-1 Form”)[1].
4. By a Notice of Decision dated 28 February 2018, the Director decided against the applicant’s claim. The Director’s Decision 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. After a hearing on 20 November 2018, the Board dismissed the applicant’s appeal by its Decision. In dismissing his appeal, the Board concluded that the applicant had failed to discharge the burden of proving the factual basis in support of his claim for non-refoulement protection. Further, even if the applicant may face some threats of harm should he return to Habibabad, Pakistan in the reasonably foreseeable future, these risks could be mitigated by the availability of state protection and viability of internal relocation.
The Judge’s decision
6. The applicant filed a Form 86 on 18 February 2019 purportedly seeking to judicially review the Director’s and the Board’s Decisions, without setting out any grounds. The Judge, in accordance with the principles stated in Re Moshsin Ali [2018] HKCA 549, treated the intended review as against the Board’s Decision only.
7. In his supporting affirmation, the applicant exhibited copies of the Decisions, and contended that the Director and the Board did not take into account “[his] life threat” in Pakistan.
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 grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [21] to [27] of the CALL‑1 Form:
“21. The Applicant did not state his grounds for judicial review in the Form 86. The grounds of his application as stated in his supporting affirmation are as follows:
‘I stated that I request that please proceed my case under humanitarian grounds, because the Director of Immigration, and Appeal Board did not take into account my life threat in my country. This Decision is unfair.’
22. In essence, the Applicant’s complaint is that he disagrees with the outcome of the Decision because the Board did not take into account the threat to his life if he returns to Pakistan. He is therefore disputing the finding of fact by the Board. He also complains that the Decision is unfair. He did not advance any reasons or argument as to what is wrong with the Decision, what is the unfairness complained of and why the Decision is unfair.
23. He had been invited by the Court via its letter dated 15 December 2021 to advise the Court of his first language and his telephone contact number and to file submissions. He only replied that his first language is Urdu and gave his contact number. He did not file any submission because he claimed he had ‘submitted my all concern document of my case to the Honourable Court & Director of Immigration and TCAB’.
24. Absent any particular grounds for application, the court could only focus on errors of law, procedural unfairness or irrationality in the Decision.
Discussion and conclusion
25. This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality.
26. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board accepted the centre piece of the Applicant’s case. But even on that evidence, it found he had failed to prove the factual basis to support his case. Further, the risk of harm, even if it existed, could be prevented avoided by state protection or avoided by internal relocation. It was on these basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.
27. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.”
The present application for extension of time to appeal
9. The applicant’s last known address in his Form 86 was at Lock Road, Tsim Sha Tsui. On 30 December 2021, the applicant informed the court that he had moved to an address at Mody Road, Tsim Sha Tsui (“the Address”). 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 Address on 18 May 2022, and were not 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 18 May 2022.
11. The applicant thereafter took out a summons in the Court of First Instance on 15 June 2022 seeking extension of time to appeal, in which his address was stated to the Address. In his supporting affirmation filed on the same date, he stated that he did not agree with the Judge’s decision and alleged that his life was genuinely in danger should he return to Pakistan.
12. The applicant’s application to appeal out of time was dismissed by the Judge on 28 July 2022[6].
13. By a summons filed on 15 August 2022, the applicant renewed his application for an extension of time to appeal before this court, wherein he stated that the “decision is not fair and court did not give me time to appear in court”. In his supporting affirmation, the applicant reiterated that his life was “not safe in Pakistan”.
14. In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court. He is therefore debarred from lodging and relying upon any written submissions.
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. As noted above, the Judge’s Decision was sent to the last known address of the applicant and was not returned undelivered. The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.
17. In any event, he has failed to proffer any explanation at all for the delay in lodging his intended appeal.
18. We have however nonetheless proceeded to consider the merits of the intended appeal.
19. 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 Decision, or how such Decision 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.
20. 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.
21. It is 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.
22. 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 15 August 2022 is accordingly dismissed.
(AARIF BARMA)
Justice of Appeal |
(THOMAS AU)
Justice of Appeal |
| The applicant acting in person |
[1] [2022] HKCFI 1449
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2022] HKCFI 2230
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