RE NASEER TARAB UL HASSAN

CAMP 247/2021

[2021] HKCA 1849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 247 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 772 OF 2017)

____________________

____________________

_______________

J U D G M E N T

_______________

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

1.  By a summons dated 9 July 2021, the applicant applied to this Court for leave to appeal against the order made by Campbell-Moffat J. (“the Judge”) dated 25 June 2021 refusing the applicant’s application for extension of time to appeal ([2021] HKCFI 1857) (“EOT Decision”) against the Judge’s previous order dated 14 September 2018, whereby the Judge refused to grant leave to the applicant to apply for judicial review ([2018] HKCFI 1748) (“Leave Decision”).

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

Background

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 15 April 2015 and subsequently raised a non-refoulement claim by way of written representation dated 26 August 2015 on the basis that if he returned to Pakistan, his life would be in danger because he experienced disputes with some people of the Shia religion, who threatened and attempted to kill him.  Details of the applicant’s claim were summarised by the Judge at [4] ‑ [5] of the Leave Decision.

4.  By the Notice of Decision dated 21 June 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3], and persecution risk^[4].

5.  On 3 July 2017, the applicant appealed against the Director’s Decision to the Board.  He attended an oral hearing before the Board on 15 September 2017 and an interpreter who spoke Punjabi / English languages assisted the Board during the hearing.  The Board dismissed his appeal on 20 September 2017 and confirmed the Director’s Decision.  The Board noted that as the applicant was unwilling to give oral testimony during the hearing, the Board was unable to question the applicant on the reliability of his claim, and noting that the onus was on the applicant to present his case, on the basis of the evidence before the Board, the Board considered that the applicant’s non-refoulement claim was not substantiated.

The Leave Decision

6.  On 17 October 2017, the applicant filed a Form 86 together with a supporting affirmation, both dated 3 October 2017, for leave to apply for judicial review. In his Form 86, he did not specify the decision he was challenging against and gave no ground for seeking relief.  In his supporting affirmation, he stated he was detained in the Castle Peak Bay Immigration Centre for very long and the Immigration Department (“the Department”) finished his claim on the basis of assumption only.  He asserted that he was not so educated and the Department did not give him a chance to give evidence.  He would like to apply for judicial review so that he could get time to prove his case or bring documents in support to prove his claim.  As he did not request for an oral hearing, the Judge considered his application on paper.

7.  By the Leave Decision, the Judge dismissed his application for leave to apply for judicial review for the following reasons:

“Leave to apply for judicial review

10. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11. The Applicant has provided limited grounds of review in that he argues that his claim was decided on ‘assumptions’ and that his detention by the Immigration Department has prevented him from giving evidence. The Applicant attended a screening interview on 16 June 2017 with the Director and a hearing on 15 September 2017 with the Adjudicator of the TCAB and I am satisfied that he has had sufficient opportunity to present all evidence relevant to his claim. The fact that he refused to give evidence before the Adjudicator is unfortunate but any prejudice therefrom must be placed at his door. Notwithstanding these limited grounds and his behaviour below, I have considered all of the papers and found no additional grounds of review.

Conclusion

12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

The EOT Decision

8.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Judge’s order 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.

9.  On 12 April 2021, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”) together with a supporting affirmation.  By then, he was late for more than 2.5 years with his intended appeal.  The hearing for the EOT Summons was held on 25 June 2021 with the assistance of a Punjabi interpreter.  However, the applicant did not attend the said hearing.

10.  By the EOT Decision, the Judge refused to grant the applicant extension of time to appeal.  The Judge noted that the applicant in his supporting affirmation accepted he was late but gave no reason as to why that was the case other than to say that he did not receive the letter.  The Judge further noted that when the applicant filed his application for leave to apply for judicial review in October 2017, he was detained at Castle Peak Bay Immigration Centre.  By the time the Court sent the correspondence enclosing the Order of the Court refusing leave to apply for judicial review to that address, the applicant was no longer at Castle Peak Bay Immigration Centre and the Department did not inform the Court of his forwarding address. Although the Court wrote to the Department for an updated address, the Department did not respond and nothing had happened since that date.  Whilst the Judge was unimpressed with the lack of cooperation of the Department, the Judge noted that the applicant took no further steps to progress his own application and in any event, it was the duty of a litigant to give the Court an address to which correspondence or notice could come to his attention in a timely manner.  The consequence of any delay arising from failing to do so would fall upon the litigant and the Judge found that there was no excuse for the applicant’s delay.

11.  Noting that the applicant had raised no complaint in relation to the Leave Decision and noting that the Court previously considered the paper and found his application for leave to apply for judicial review to be without merit, the Judge refused to grant extension of time.  Accordingly, the EOT Summons was dismissed.

The Present Application

12.  By a summons dated 9 July 2021, the applicant sought leave from this Court to appeal against the EOT Decision.  In the supporting affirmation of the same date, he claimed he did not know English and the Court procedure and did not have any financial resources to get legal assistance.  He did not however point to any errors in the Leave Decision.

13.  In his written submissions lodged on 23 July 2021, the applicant asserted that he disagreed with the decision made by the Director and the Board and did not think his case was determined fairly.  He further complained that he was not fully informed of his rights and was not given the opportunity to be heard with assistance.  He contended it was not easy for him to appeal against the decision as he did not know thoroughly how his case was determined.

Discussion

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  We consider that the applicant’s delay of over 2.5 years to be very substantial and the applicant failed to provide any cogent explanation for the delay.  We agree with the Judge that it is the duty of the litigant to give the Court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant: Re Hasmi Rizwan Imran [2018] HKCA 439 at [15]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9].

17.  As such, given that the applicant failed to provide any cogent explanation for his delay, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

18.  In assessing the merit of an intended appeal, this Court will focus on the decision of the Judge and will 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: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

19.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Judge.  His complaints are general and bare assertions without any specific particulars, elaboration or evidence in support.  They do not constitute viable grounds of appeal.  The intended appeal must fail on this basis alone.

20.  In any event, his allegations are wholly without merit.  It is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  The assistance of Punjabi interpreters was provided during the hearing before the Board and at the hearing of the EOT Summons before the Judge and the applicant had opportunities to present his case.  However, he chose not to give oral testimony before the Board or attend the hearing of the EOT Summons.  The Court documents filed in this application and in the Court below were all in English. It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  It is therefore clear that the applicant was not in any way prejudiced.

21.  It is well established that a CAT claimant or a claimant for BOR2 or BOR3 or persecution risks does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  In any event, the assessment of his non-refoulement claim by the Board and the consideration of his application for leave to apply for judicial review by the Judge were thorough and fair.  We consider that a high standard of fairness had been achieved in the overall process of the determination of his non-refoulement claim.  Accordingly, there is no merit in his intended appeal.

22.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the summons dated 9 July 2021 dismissed.