RE WIN AUNG

CAMP 229/2022

[2022] HKCA 1396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 229 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2970 OF 2018)

____________

____________

_________________

J U D G M E N T

_________________

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

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge P Li (“Judge”) dated 18 December 2020[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 6 December 2018. In that decision, the Board upheld the two decisions of the Director of Immigration (“Director”) dated 2 September 2016 and 6 October 2017 respectively rejecting the applicant’s non-refoulement claim.

2.  On 25 March 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

3.  Although the Judge’s decisions were given in Chinese, the applicant has filed his Notice of Appeal as well as an affirmation in this court in English. The Form 86 and his summons for extension of time below and the accompanying affirmations were also in English. We accordingly issue this judgment in English. The applicant will nevertheless be notified (in Chinese) that if he has any difficulty in understanding this judgment, it can be interpreted to him by the court’s interpretation service.

Background

4.  The applicant is a national of Myanmar, born in 1972. He came to Hong Kong as a visitor on 22 September 2006 and was permitted to stay until 6 October 2006, but he overstayed. On 17 January 2007 he was arrested by the police. He raised his current non-refoulement claim by written representation on 11 March 2014, and lodged a non-refoulement claim form on 17 March 2016.

5.  The applicant’s claim was based on the fear that if he returned to Myanmar, he would be tortured or even killed by government officials including the police there. The factual background of his claim was set out at [3] to [30] of the Board’s decision.

6.  The applicant’s claim was first assessed by the Director with reference to BOR 3 risk,[3] persecution risk,[4] and torture risk.[5]  By notice of decision dated 2 September 2016 the Director decided against the applicant’s claim. Subsequently the applicant was invited by the Director to submit additional facts and information for assessment of BOR 2 risk.[6]  He did not do so. By a notice of further decision dated 6 October 2017 the Director rejected the applicant’s claim with reference to BOR 2 risk.

7.  The applicant appealed to the Board against the two decisions of the Director. The Board held a hearing on 25 October 2018, at which the applicant gave evidence and answered the Board’s questions. In the end the Board found that there were numerous inconsistencies and incredible aspects in the applicant’s evidence, and did not accept him to be an honest witness. On the basis that the facts asserted in the applicant’s claim were not accepted, the Board rejected his claim.[7]  In addition, the Board took the view that even if the facts stated in the applicant’s non-refoulement claim form were accepted, his claim should still be dismissed, mainly because the facts show that the applicant would simply be arrested and prosecuted for the alleged wrongful acts he committed in 1988, and would not be tortured or killed.[8] Accordingly, in its decision issued on 6 December 2018, the Board dismissed the applicant’s appeal.

The Judge’s decisions in the court below

8.  On 24 December 2018, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision, but he did not specify any ground for judicial review in the Form 86 and only stated in his affirmation that the Immigration Department had disregarded the danger and threats he faced in his country.

9.  Based on consideration of the documents alone, on 18 December 2020 the Judge issued his decision, refusing to grant leave to apply for judicial review. After stating the reasons of the Director and the Board for their decisions, the Judge stated in the Form CALL‑1 as follows:

“ 23. 申請人於24/12/2018申請司法覆核許可，申請人指處長和審裁員沒有處理他回緬甸所受的危險。申請人沒有指出審裁員的決定有任何出錯。

24. 本席主要考慮上訴委員會的決定，審裁員指出申請人證供很多矛盾，不相信他的講法。審裁員沒有在法律和程序方面犯錯，結論也合理。

25. 本案沒有合理可爭辯的論據，也沒有合理成功機會，現拒絕申請人的司法覆核許可。”

10.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A).

11.  On 10 March 2021, he took out a summons below to seek an extension of time to appeal against the decision of the Judge. He did not set out any reasons for the delay or intended grounds of appeal either in the summons or his affirmation.

12.  The Judge determined the application on paper without an oral hearing. In his decision dated 25 March 2022, the Judge dismissed the application as he considered that there was no ground for the intended judicial review and no explanation of the applicant’s delay.

The renewed application before this Court

13.  After a delay of another several months, on 5 July 2022, the applicant took out a summons seeking extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review. In his accompanying affirmation, the applicant said he failed to appeal in time as he did not receive the letter from the court, and requested an extension of time. In his written submissions lodged on 19 July 2022, he stated that his enemy was powerful and influential in his country, that there was a threat to his life there, and that he could not fight with the Government.

14.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we determine this application on the basis of the written materials without an oral hearing.

Discussion

15.  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.

16.  There is no valid explanation for the delay of over two months at the beginning of 2021 in the present case. There was another substantial delay before he applied to this court for extension of time. The applicant needs to show a real prospect of success in the appeal in order for time to be extended.

17.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, 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 of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

18.  In the present case, the Board rejected the applicant’s non-refoulement claim because it had found that the applicant’s evidence was not reliable given the inconsistencies and internal illogicalities referred to in the decision. The Board also considered that even if the asserted facts were accepted, there was no real risk of the relevant harm. These findings are within the province of the Board, and the court cannot interfere with such assessments unless they are vitiated on public law grounds. The applicant had wholly failed to set out any such grounds. Nor are there any such grounds evident in the papers before us.

19.  The applicant has also failed to show how the Judge has erred in refusing leave for judicial review.

20.  As there are no grounds of appeal advanced that point to any error in the Judge’s decision, the appeal should be dismissed. Having considered the materials before us, we share the Judge’s view that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

21.  We do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons is accordingly dismissed.