RE AHMED SHAFIQUE

CAMP 400/2022, [2023] HKCA 542

On Appeal From [2022] HKCFI 318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 400 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 273/2019)

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J U D G M E N T

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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 Bruno Chan (“the Judge”) dated 26 January 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 13 May 2015 and 24 January 2019 (“the Board’s Decisions”) dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 5 November 2014 and 11 April 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”).

Background

2.  The applicant is a national of India. He arrived in Hong Kong from India on 12 July 2014, but was refused permission to land.  On 14 July 2014, he raised a non-refoulement claim which he subsequently withdrew on 18 July 2014. Thereafter, his request to re-open his claim was allowed by the Immigration Department.

3.  The applicant’s claim was based on a fear of being harmed or killed by a man named Sabir Ali and his associates from All India Triamool Congress.  The details of the applicant’s claim have been summarised by the Judge at [2] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision and a Notice of Further Decision respectively dated 5 November 2014 and 11 April 2017, the Director decided against the applicant’s claim.  The Director’s Decisions covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed against the Director’s Decisions to the Board.  After hearings held on 10 February 2015 and 10 April 2015 (where the applicant was legally represented) and on 12 December 2018, the Board dismissed the applicant’s appeal by its Decisions.  In dismissing his appeal, the Board found that the applicant’s evidence on his fear of harm from Sabir was incredible, and that in any event suitable options of internal relocation were available to him.

The Judge’s decision

6.  The applicant filed a Form 86 on 29 January 2019 seeking to judicially review the Board’s Decision dated 24 January 2019 (which was treated by the Judge as being against both of the Board’s Decisions), without setting out any grounds.  In his supporting affirmation, the applicant merely attached copies of the relevant decisions made by the Board and the Director.

7.  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 [12] to [16] of the CALL‑1 Form:

“12.  On 29 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but given the Director’s earlier invitation as noted above for the Applicant to submit any additional information not just for his BOR 2 claim but all applicable grounds for non-refoulement protection, I propose to treat the Applicant’s application as one to challenge both decisions of the Board, but for which he failed to put forth any ground for seeking relief either in his Form or in his supporting affirmation of the same date to which he merely attached copies of the decisions and documents of his hearing bundle for his earlier appeal to the Board but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his either appeals before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises and having considered the decisions of both the Director and the Board, and of both their previous decisions on torture risk, BOR 3 risk and persecution risk as well as their later decisions on BOR 2 risk, with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in any of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim under all the applicable grounds.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The present application for extension of time to appeal

8.  The applicant’s last known address in his Form 86 was at 36‑44 Nathan 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 26 January 2022, and this was not returned undelivered.

9.  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 26 January 2022.

10.  The applicant thereafter took out a summons in the Court of First Instance on 28 February 2022 seeking extension of time to appeal, in which his address was stated to be at the Address.  He stated that his was late in filing his intended appeal because “as a layman” he did not know what to do.  He claimed that his life was still in danger if he returned to his home country.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 28 September 2022[6].

12.  By a summons filed on 30 September 2022, the applicant renewed his application for an extension of time to appeal before this court.  In his summons and supporting affirmation, he stated that the Judge failed to consider “all applicable grounds of non-refoulement claims” and that his life was still in danger.

13.  Upon application by the applicant, an extension of time to lodge written submissions was granted by this court on 9 November 2022.  In the applicant’s submissions dated 18 November 2022, he referred to the well-established principles in ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

Discussion

14.  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.

15.  As noted above, the Judge’s Decision was sent to the last known address of the applicant at the time and was not returned undelivered.  There was also no suggestion by the applicant that he did not receive the Judge’s Decision in good time.  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.

16.  The applicant has in our view failed to proffer any reasonable explanation for the delay in lodging his intended appeal.  

17.  We have nonetheless proceeded to consider the merits of the intended appeal.

18.  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 Decisions, or how such Decisions 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. 

19.  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.

20.  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 identified errors on the part of the Judge.  This has clearly not been done here.

21.  Further, there was no attempt by the applicant to elaborate on whether and if so, how, the trite principles referred to in his written submissions had not been applied in the processing of his non-refoulement claim.

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 30 September 2022 is accordingly dismissed.