RE SAID ISMAIL HAMOUD

CAMP 378/2022, [2023] HKCA 736

ON APPEAL FROM [2022] HKCFI 311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 378 OF 2022

(ON APPEAL FROM HCAL NO. 161 OF 2019)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

I. Renewed application for extension of time to appeal

1.  On 17 January 2019, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against ‘the decision made by the immigration department on my non-refoulment claim on 4 January 2019’, which should have been a reference to the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 4 January 2019 which dismissed his appeal against the decision of the Director of Immigration (the ‘Director’)  dated 31 July 2017 rejecting his claim for non-refoulement protection.

2.  In his decision of 25 January 2022 (the ‘Decision’), Deputy High Court Judge Bruno Chan refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the Decision.  Being out of time, the applicant took out an application on 14 April 2022 before the Judge requesting an extension of time to appeal.  The Judge on 31 August 2022 rejected the applicant’s application.

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 26 September 2022 (late for over two weeks), the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.  Under Order 59, rule 14A(1)  of the Rules of the High Court, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II. Background

6.  The applicant is a national of Tanzania.  He entered Hong Kong on 6 October 2009 with permission to remain as a visitor up to 8 November 2009.  He overstayed and was arrested on 30 October 2010.  He then raised a non-refoulement claim on the basis that if he returned to Tanzania he would be harmed or killed by the Tanzanian police or authorities for having participated in anti-government activities.

7.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of the Decision.

III. The Director’s Decision

8.  The Director decided against the applicant’s claim on 31 July 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (the ‘Director’s Decision’).

IV. The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 7 December 2018, the Board dismissed the applicant’s appeal on 4 January 2019 (the ‘Board’s Decision’).

10.  The Board found the applicant’s case contradictory, vague, lacking in details and unconvincing.  In the absence of corroborating evidence, the Board rejected the applicant’s allegations regarding his involvement in political activities and the alleged risk of arrest, torture or ill-treatment by the Tanzanian police or authorities.  The Board therefore found that the applicant’s claim failed on all applicable grounds.

V. Decision of the Judge

11.  The applicant filed a Form 86 and a supporting affirmation on 17 January 2019.  He did not put forward any ground for seeking relief in his Form 86.  In his affirmation, he merely claimed that the Immigration Department disregarded his ‘dangerous situation’.

12.  The applicant did not request an oral hearing before the Judge.  The Judge decided that it was appropriate to determine the application on paper without an oral hearing.

13.  Even though the applicant did not identify any error of law, irrationality or procedural unfairness in the proceedings before the Board or its decision, the Judge considered the Director’s Decision and the Board’s Decision with rigorous examination and anxious scrutiny.  The Judge did not find any error of law or procedural unfairness, nor any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  In the premises, the Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review and accordingly refused the leave application.

14.  In his decision of 31 August 2022, the Judge considered the delay of more than nine weeks substantial and inordinate.  The Judge was not satisfied that the applicant had provided any good or valid reason for the serious delay.  More importantly, the Judge found there was no prospect of success for the intended appeal.  The Judge therefore refused the applicant’s application for extension of time to appeal.

VI. Legal principles

15.  In considering whether to extend time for appeal, the Court will have regard to:

1)  Length of the delay;

2)  Reasons for the delay;

3)  Prospect of the intended appeal; and

4)  Prejudice to the putative respondent if extension of time was granted.

VII. Analysis

1)  Length of delay and reasons for the delay

16.  The applicant was late for over nine weeks when he filed his application for extension of time to appeal before the Judge.  His renewed application to this Court was again late by over two weeks.  The applicant only claimed in his affirmation for the renewed application that he had limited skills of English and did not know about court procedure.  The delay is significant and the explanation is unsatisfactory.  Nevertheless, we shall focus on the merits of this case.

2)  Prospect of the intended appeal

17.  The applicant did not provide any proposed grounds of appeal.  In his written submissions, he complained that his case was not determined fairly because he was not provided with proper legal and language assistance.  He complained that the determination of appeal/petition was never read to him in his own language.

18.  This ground was raised for the first time before us and not pursued before the Judge.  In any event, it is devoid of merits.

19.  It is well-established that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security (2004)  7 HKCFAR 187 nor the judgment of FB v. Director of Immigration (HCAL 51/2007)  prescribes that a CAT claimant or a claimant for protection against BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]. 

20.  The applicant already had the benefit of free legal assistance in presenting his case to the Director.  He also had the opportunity to advance his case fully before the Board.  Although he did not have legal representation before the Board and the Judge, his case was assessed by the Board and the Judge in a thorough and fair manner.  We consider that a high standard of fairness had been achieved in the overall process of the determination of his non-refoulement claim.

21.  It is also trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the times as he desires: Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  We note that the documents filed in this appeal and in the Court below were in English.  It is thus clear that the applicant is himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  At [43] of the Board’s Decision, the Board also observed that the applicant clearly understood the questions and there was nothing to indicate that he had any communication or interpretation issues during the hearing before the Board.  Therefore, the ground relating to the lack of language assistance is also unmeritorious.

22.  More importantly, we agree with the Judge that there is no prospect of success in the intended appeal.  The Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant 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.  An appeal 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 were not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

23.  Furthermore, the Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

24.  In the present case, the applicant has not identified any proper grounds of appeal or errors committed by the Judge.  The intended appeal is completely devoid of merits.

VIII. Disposition

25.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 26 September 2022.