RE EHSAN AHMED

CAMP 183/2023, [2024] HKCA 262

On Appeal From [2023] HKCFI 357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 183 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 32 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  On 8 May 2023, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 21 February 2023 ([2023] HKCFI 357) (“the Leave Decision”) refusing leave to apply for judicial review.  On 2 May 2023, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 1024) (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 27 November 2018, whereby the Board dismissed the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 14 December 2015 and 16 June 2017 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 6 June 2013 and was arrested by the police for illegal remaining on 8 June 2013.  On 11 June 2013, he made a request for asylum to the UNHCR.  On 3 March 2014, he lodged a non-refoulement claim, on the basis that, if refouled, he would be harmed or killed by his cousins, Riaz and Ilyas, for a land dispute.  Details of the applicant’s claim have been summarised by the Judge at [4] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 14 December 2015 and a Notice of Further Decision dated 16 June 2017 (collectively referred to as “the Director’s Decisions”), the Director rejected the applicant’s non‑refoulement claim on all applicable grounds: risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decisions to the Board.  On 27 November 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decisions (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [11] ‑ [12] of the Leave Decision:

“11. The Board noticed that the applicant provided inconsistent accounts as to the attack of his father [31]. During the hearing, the applicant stated that the long lapse of time had prevented him from recollecting these events [32]-[33]. The Board also noted that the cousins would not get the land even if they killed the applicant as he was not the owner of the land and he confirmed that his father had yet to transfer the land to him [34]. Further, when asked whether his brother would inherit the disputed land, the applicant replied that his brother had already taken a piece of land [35]. Thereafter, the applicant indicated that he did not wish to answer further questions. The Board warned the applicant of the negative consequence against his credibility if he decided not to give further evidence [36].

12. The Board found that much of the applicant’s evidence were based on hearsay information [41]. His evidence was also inherently inconsistent [42]. In absence of his oral evidence, the Board was unable to determine the general credibility of his claim [43]. However, the Board was of the view that, even taking the applicant’s evidence at its face value, the core of his claim was inherently implausible and lacked credibility [44]. In this light, the Board rejected the applicant’s claim and dismissed his appeal.”

7.  On 4 January 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review of the Board’s Decision was given in the Form 86 or the supporting affirmation.

THE JUDGE’S DECISION

8.  On 21 February 2023, as the applicant did not request an oral hearing, the Judge determined his application on paper and refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [15] ‑ [23] of the Leave Decision.  In particular:

“18. The Board had assessed his case and found at paragraphs 43 and 44 of the Board’s Decision:

‘43. In the absence of oral evidence from the Claimant, the Board is unable to determine the issues relating to his general credibility. In the circumstances, the Board is unable to determine which, if any, of the past events which the Claimant says took place actually, occurred.

44. Even if the Claimant’s evidence is taken at face value, the core of the Claimant’s case is inherently implausible and lacking in credibility.’

19. The Board’s finding of being ‘unable to determine the issues relating to his general credibility …’ was an issue of comments by the Court of Appeal in Re Hidayah [2018] HKCA 595 §15:

‘The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. … There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. … . Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.’

20. Where the applicant refused or elected not to answer questions for clarification, it is open to the Board to determine the credibility of the evidence, relying on section 37ZA or the Ordinance, which imposes an obligation on the applicant to make prompt and full disclosure of all material facts in support of the claim. His refusal to do so without good reasons is a contravention of the statutory provision. …

21. It is obvious that the Board had found the applicant’s evidence not believable in this case. Since the applicant had taken his choice not to answer the Board’s questions for clarification, the applicant cannot blame the Board’s adverse findings against him.

22. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

23. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14‑day period.

10.  On 4 April 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was almost one month late with his intended appeal.

11.  On 2 May 2023, the Judge refused the applicant’s application, holding that the applicant had not been able to raise any valid ground to challenge the Board’s Decision and there was no realistic prospect of success in his intended appeal.

THIS APPLICATION

12.  By a summons and a supporting affirmation taken out on 8 May 2023 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons and supporting affirmation, the applicant did not give any reason for his delay.

13.  Pursuant to the directions of the Registrar of Civil Appeals dated 8 May 2023, the applicant lodged his written submissions 22 May 2023.  In those submissions, he repeated the factual basis and procedural history of his claim and alleged that, if refouled, his enemies would kill him and the police in his home country would not help him.

DISCUSSION

14.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

15.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

16.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, 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’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

17.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

18.  At the outset, the applicant’s delay of almost one month is substantial.  Ignorance of court procedure is not a valid reason for such delay. 

19.  More importantly, there is also no merit in the applicant’s intended appeal.  His complaints are general allegations without particulars.  No error of law or procedural unfairness or irrationality is found in the Board’s Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

20.  The applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.

21.  There is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

22.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 8 May 2023 is dismissed.