RE ASIF MUHAMMAD

CAMP 69/2022, [2023] HKCA 1189

On Appeal From [2021] HKCFI 1398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 69 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2783 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge To (“Judge”) on 25 May 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 30 November 2018. In that decision, the Board refused to allow the applicant to file a late appeal against the decision of the Director of Immigration (“Director”) dated 6 July 2017 rejecting the applicant’s non-refoulement claim.

2.  On 30 September 2021, Deputy High Court Judge K W Lung refused to extend time for the applicant to appeal against the Judge’s decision of 25 May 2021.

Background

3.  The applicant is a Pakistani national born in 1986. He was arrested by the police in Hong Kong on 9 December 2013 for being an illegal immigrant, and was referred to the Immigration Department on 11 December 2013. He lodged his non-refoulement claim on 14 December 2013. His claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by a group of men that he referred to as “the Group”, who wanted to find out the whereabouts of his father’s business partner (one Mr Khalid) with whom the Group was embroiled in a feud. Further factual background of the applicant’s claim was set out at paragraphs 22 to 87 of a previous Board’s decision dated 15 May 2017.

4.  By notices of decision dated 29 January 2016 and 6 July 2017, the Director assessed the applicant’s claim with reference to all applicable grounds and determined it against him. The former covered BOR 3 risk,[2] persecution risk,[3] and torture risk,[4] while the latter covered BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s first decision dated 29 January 2016. An oral hearing was held on 15 November 2016, during which the applicant elected to give evidence, and relied on the written materials included in the bundle before the Board. Based on the applicant’s evidence, the Board accepted that he was in the past targeted by the Group and was ill-treated in certain incidents during 2012 to 2013. However, the Board found that the applicant had not suffered pain or suffering of sufficient severity from those incidents. Thus the Board found that there was no real risk of the proscribed harm in the event of refoulement. The Board also found that reasonable state protection was available, and that there was no real chance that the applicant would be harmed or killed by the Group if he returned to Pakistan. Therefore, in its decision dated 15 May 2017, the Board dismissed the applicant’s appeal in relation to all three applicable grounds (i.e. the risks mentioned above except BOR 2 risk). The applicant did not make any application for leave to apply for judicial review of this decision of the Board.

6.  After the Director made his second decision dated 6 July 2017 in relation to BOR 2 risk, the applicant appealed again to the Board. The Board received the applicant’s Notice of Appeal on 28 July 2017, which was past the statutory 14-day deadline prescribed by section 37ZS of the Immigration Ordinance (Cap 115). The Board treated this as an application for late filing of an appeal. On 30 November 2018 the Board refused to allow late filing of the appeal because the applicant had not provided a medical report in support of his explanation that his appeal was late because he had pain in his eyes. Further, without deciding on the merits of the applicant’s BOR 2 risk claim, the Board stated that while it could not consider the merits, it noted that the applicant had advanced no further facts beyond those already considered in the previous appeal. The Board also considered that the applicant’s statement in his Notice of Appeal that the Group had recently gone to his home, asked when he would return and would kill him if he went back, indicates nothing new or which might support a BOR 2 claim.

The decisions in the court below

7.  On 6 December 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review against the Board’s decision of 30 November 2018. In his supporting affirmation, the applicant stated that the Board’s decision “is so unfair”. However, he did not raise any specific grounds for judicial review.

8.  Following consideration of the documents only, on 25 May 2021 the Judge refused to grant leave to apply for judicial review. The Judge first considered whether the Board’s decision not to allow late filing of the appeal could be impugned, and concluded that it could not, for the reasons set out in [22] – [27] of the Judge’s written decision as follows:

“ 22. The Applicant was six days late in lodging his Notice of Appeal. The reason he gave for the delay was that he was suffering pain in his eyes. He did not give particulars. He said he had proof but he did not provide any. The Board did not consider that a good reason. Then it proceeded to consider whether there were special circumstances by reason of which it would be unjust not to allow the late filing. Essentially, the Board called upon its own knowledge of the 2017 Decision made by another adjudicator. Then having regard to the totality of the evidence, the Board was of the view that there was no merit in the intended appeal and hence concluded that there were no special circumstances by reason of which it would be unjust not to allow the late filing. The Board followed the procedure set out in section 37ZT and the Petition Guide to the letter. Even though the Board did not mention Begum, it effectively adopted the three-stage approach in that case. There was no procedural unfairness.

23. The Applicant was six days late. The Board did not make an express ruling whether the breach was serious and went straight into the second stage of the analysis. I am bound by Re Qasim Ali. The delay cannot on any view be regarded as serious. The Applicant passed the first stage of the Begum test. But nothing turned on that fact for Begum should not be understood as laying down any principle that if the breach is not serious, the claimant is entitled to extension of time. It only suggested that it would usually be unnecessary to spend much time on the second or third stages, not that these two stages may be dispensed with altogether. The standard of proof is lower.

24. In the second stage of the analysis, the Board gave the following reasons why it rejected the Applicant’s explanation. It said:[6]

‘ 12. The difficulty here is that “pain in the eye” might affect a person’s ability to submit an appeal on time or it might not. If the Petitioner claims that he was unable because of a medical condition to lodge his appeal on time, he could and should submit a medical report in support. He has had ample time to do so since July 2017 but he has not. So the reason given for lateness is not convincing. There is no good reason to allow the late filing.’

25. I can well understand the Board’s frustration facing the casual attitude of the Applicant. The Applicant was required to produce supporting documents. He said he had such proof but chose not to produce it or tell the Board what it was. The Board was required to consider whether to give him indulgence on the basis of its own knowledge of the relevant matters and that single, unsupported and un-particularized assertion and nothing else. In effect, the Board was asked to guess what was the reason for the delay or give a reason for the delay for the Applicant.

26. The Applicant said he had proof. Hence, it was reasonable for the Board to take the view that if he claimed he was unable because of a medical condition to lodge his appeal on time and he had proof, he could and should submit such proof, be it a medical report or sick leave certificate or whatever. He had had a year and half to do so before the Board made its decision; but he did not. It was therefore open to the Board to come to the conclusion as it did that the reason given was unconvincing or untrue. The Board’s 2018 Decision could not be criticized as being Wednesbury unreasonable or irrational.

27. Despite the Board’s finding that the Applicant had no valid explanation for the delay, it did not jump to the conclusion that his application be refused. It investigated into the merits. It was only upon that further consideration and finding that there was nothing to support a BOR 2 Risk claim that the Board came to the conclusion that there were no special circumstances by reason of which it would be unjust not to allow the late filing. In effect, the Board did what was required under the third stage of the Begum analysis. The Board’s approach could not be criticised as being procedurally unfair, Wednesbury unreasonable or irrational.”

9.  Further, the Judge could not find fault in the Board’s assessment of the merits of the applicant’s intended appeal against the second decision of the Director, as stated in the Judge’s decision at [28] – [32] as follows:

“ 28. Having rejected the explanation given by the Applicant, the Board called upon its own knowledge of the factual circumstances of the case. It should also be recalled that the Applicant did not respond to the Director’s invitation to submit new relevant facts in relation to the BOR 2 Risk ground. Thus, there were no new facts relating to the BOR 2 Risk ground before the Board. The Board then referred to the 2017 Decision relating to the other three applicable grounds made by another adjudicator and the Notice of Appeal intended to be filed by the Applicant. Then the Board concluded that as the Applicant had adduced no further relevant facts in relation to his BOR 2 Risk ground and his Notice of Appeal added nothing new, there was nothing which might support a BOR 2 claim beyond the facts already considered under the 2017 Decision. In other words, the Board considered there was no merit in the intended appeal. The Board said:

‘ 13. I have to consider whether there are special circumstances by reason of which it would be unjust not to allow the late filing.

14. The Petitioner’s non-refoulement claim on the original grounds was refused by the Director and that refusal was confirmed on appeal. I have read the appeal decision and know the issues raised by the Petiioner and considered by the Adjudicator in that case. As appears from the Adjudicator’s decision, the Petitioner claimed that he had been targeted by a group (“the Group”) for information on a Mr Khalid against whom there was an allegation of unlawful killing, and if refouled to Pakistan he would be harmed or killed by the Group.

15. While I cannot at this stage consider the merits of the Petitioner’s claim of BOR 2 risk, I note that the Petitioner has advanced no further relevant facts beyond those considered in USM 3079 [ie the 2017 Decision]. In his Notice of Appeal he claims that the Group had recently gone to his home and asked when he would return, and if he went back they would kill him. However this indicates nothing new or which might support a BOR 2 claim, beyond the facts already considered in USM 3079 [ie the 2017 Decision].

16. There are no special circumstances by reason of which it would be unjust not to allow the late filing.’

29. Whether the 2018 Decision is reviewable depends on whether the Board was correct in its assessment of the merits of the intended appeal. On the proper construction of BOR 2, this risk is not engaged. First, on the Applicant’s own case, his risk comes from the Group and not the Pakistani government. There is no evidence that Pakistan is in breach of its international obligation under ICCPR. There is, therefore, no question that the Applicant’s right to life would be at risk of violation by the Pakistani government. Thus BOR 2(1) is not engaged. Second, it is not the Applicant’s case that he is being charged with any criminal offence attracting capital punishment. Thus BOR 2(2) to (6) are not engaged.

30. Just for the sake of argument, even on the basis of the wider construction of BOR 2, which I do not accept, the Applicant is unable to prove BOR 2 Risk ground. In the 2017 Decision, the Board accepted the Applicant’s factual case summarized in paragraph 3 above, except his assertion of fear and risk of harm, torture or death. In relation to his fear and risk of torture, given the frequency, duration and severity of injuries of past ill-treatments, the Board was not satisfied that the ill-treatment amounted to torture as defined under section 37U of the Immigration Ordinance[7]. In respect of the BOR 3 Risk and Persecution Risk, the Board did not accept that there was a real chance that the Group will kill or attempt to kill the Applicant[8] or to subject him to persecution for one or more of the five reasons under the 1951 Convention relating to the Status of Refugees[9], if refouled to Pakistan. These findings by the Board are final and binding on the Applicant. Thus, on the evidence as it stands, the Applicant is unable to prove he has any genuine fear or risk of death, harm, torture or persecution to support a claim under BOR 2 Risk ground.

31. The Applicant has been invited to submit any new or additional facts in support of his claim under BOR 2 Risk ground. He did not respond. The Board was extremely careful. It even took into account his assertion in his Notice of Appeal in which he claimed that the Group had recently gone to his home to look for him and renewed the threat to kill him. As the Board rightly held, this indicates nothing new and does not support a BOR 2 Risk claim, beyond the facts already considered in the 2017 Decision which is now final.

32. For all these reasons, the Board held that the intended appeal had no prospect of success. Though the breach is not serious, there is no valid explanation for the delay. In the eventual analysis, the intended appeal has no prospect of success. It would serve no purpose granting extension of time to lodge a late appeal which is bound to fail. Hence, the Board came to the conclusion that there were no special circumstances by reason of which it would be unjust not to allow the late filing. The 2018 Decision is un-reproachable. There was no error of law in the 2018 Decision of the Board. The 2018 Decision could not be criticised as being Wednesbury unreasonable or irrational. There was no procedurally unfairness.”

10.  The applicant did not appeal within the 14-day time limit prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A). Instead, three months later, on 8 September 2021, the applicant filed a summons to seek an extension of time to appeal against the Judge’s decision. The applicant said he was late because he did not have money to pay someone to help him prepare his application. He also stated that his life would be in danger if he were to return to his country.

11.  Subsequently, upon consideration of the documents only, on 30 September 2021, Deputy High Court Judge K W Lung refused to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal, and thus dismissed the applicant’s summons.[10]

The renewed application before this Court

12.  On 24 February 2022, the applicant filed a summons in this court to seek an extension of time to appeal against the Judge’s decision dated 25 May 2021 refusing to grant leave for judicial review. In his supporting affirmation, the applicant said that his appeal was late because he did not receive the High Court’s decision.

13.  In his written submissions, the applicant briefly referred to the factual background as well as the procedural history, and reiterated that he did not receive the High Court’s decision.

Discussion

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 intended appeal’s prospect of success; 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 will still examine whether the intended appeal has merits, in terms of whether there is a real prospect of success in persuading this Court to reverse the decision of the judge: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

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]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

17.  The applicant’s intended appeal against refusal of leave for judicial review was late by three months when he filed a summons for extension of time in September 2021. According to the court’s records, the Judge’s decision to refuse leave for judicial review was sent by ordinary post to the applicant’s address for service on his Form 86, but was returned on 2 August 2021 stamped “Refused”, though it is unclear from the documents as to whether it was the applicant or someone else at that address who refused to accept delivery. It is noted that the applicant has specified a different address in his summons filed in this court in February 2022. It has been repeatedly stressed that it is the duty of a litigant to provide the court with an address so that correspondence or notices sent to that address can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]; Re Kashif Muhammad [2021] HKCA 621 at [13]. Accordingly, even assuming the applicant did not receive the Judge’s decision in time in the circumstances, it does not mean that an extension of time should automatically be granted. It is still relevant to have regard to the merits of the intended appeal to this court.

18.  The late filing of an appeal against the second decision of the Director was governed by statute. Section 37ZT(2) provided (as at 2017) that the Board “must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal”, and “in doing so, the Board may only take account of (a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and (b) any other relevant matters of fact within the knowledge of the Board”. The question for the Board, under the then subsection (3), was whether “it would be unjust not to allow the late filing”.

19.  As the Board set out in its decision, the Petition Guide expressly stated that in the late filing of an appeal to the Board, there must be included with it a statement of the reasons for failing to file the notice within time which must be accompanied by any documentary evidence relied on in support of the reasons. The Board was constrained by statute in two ways: first, it must decide the preliminary question without a hearing; secondly, section 37ZT(2) provided that the Board could only take account of the matters mentioned there. As the Judge said,[11] the Board followed the procedure to the letter, and there was no procedural unfairness. The applicant has not raised any ground of appeal against this conclusion. It is to be noted that even in the judicial review and even now, the applicant has not further explained how the pain in his eyes prevented him from filing the appeal in time and has not disclosed the “proof” he said he had.

20.  The merits of the intended appeal to the Board are a relevant consideration for the Board in deciding whether to allow the late filing: Re Khan Kamal Ahmed [2019] HKCA 377, §20; Re Qasim Ali [2019] HKCA 430, §§25-26.

21.  In the present case, the intended appeal to the Board was one against the Director’s decision on BOR 2 risk. The Board had already determined, in a previous appeal, that the Director’s decision on the torture risk, persecution risk and BOR 3 risk was to be affirmed, because although the Board accepted that the applicant had suffered some ill-treatment at the hands of the Group, it did not accept that there had been past suffering of the minimum requisite severity to amount to the proscribed harm or that there was a real chance the applicant would be harmed or killed by the Group. The Board also found that there would be state protection available to the applicant if he returned to Pakistan.

22.  Although the Director had invited the applicant to provide additional facts relevant to his claim, the applicant had not submitted any further facts. In dealing with the late filing of the appeal, although the Board said it could not at that stage consider the merits of the applicant’s claim of BOR 2 risk, the Judge, having examined the Board’s decision, said that “the Board considered there was no merit in the intended appeal”[12] and “held that the intended appeal had no prospect of success”.[13] The applicant has not raised any ground of appeal against the Judge’s conclusion in this respect either. Having examined the Board’s decision ourselves, we also take the view that the Board did in substance consider the merits of the intended appeal before it. This is therefore not a case where the Judge had himself or herself tried to assess the merits where the Board itself had not done so – an approach disapproved in Re Khan Kamal Ahmed at §§21-22.

23.  Further, the Judge did not find any reviewable error in the Board’s assessment of the merits of the intended appeal, as explained in the Judge’s decision at §§29-32 quoted above. The applicant has again failed to raise any viable intended ground of appeal against this conclusion.

24.  For all these reasons, we consider that there is no prospect of success in the intended appeal to this court. The application for extension of time to appeal is accordingly dismissed.