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CAMP 354/2021
[2021] HKCA 1718
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 354 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO. 2742 OF 2018)
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BETWEEN
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AKRAM FAISAL |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party |
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Before: Hon Au and Chow JJA in Court
Date of Written Submissions: 6 September 2021
Date of Judgment: 23 November 2021
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
INTRODUCTION
1. On 29 June 2021, Deputy High Court Judge To refused the Applicant’s application for leave to apply for judicial review of:
(1) the decision of the Director of Immigration (“the Director”) in his Notice of Decision dated 28 June 2017;
(2) the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) contained in its letter dated 23 October 2017 (“the Board’s Decision”);
(3) the Applicant’s own un-dated letter sent to and received by the Board on 29 October 2018 (“the Applicant’s Letter”); and
(4) the decision of the Board contained in the secretariat’s letter dated 30 October 2018 (“the Secretariat’s Letter”).
2. On 19 July 2021, the Applicant made an application for extension of time to appeal against Deputy High Court Judge To’s decision, as the 14-day period to appeal had ended on 13 July 2021. On 10 August 2021, Deputy High Court Judge K W Lung dismissed the application.
3. On 24 August 2021, the Applicant filed the present summons seeking an order that Deputy High Court Judge K W Lung’s order be set aside.
4. This application shall be treated as a renewed application for an extension of time to appeal Deputy High Court Judge To’s decision of 29 June 2021 (see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).
5. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.
BACKGROUND
6. The Applicant is a national of Pakistan. He came to Hong Kong to work as a foreign domestic helper in March 2013. Not long after he commenced his employment, he was prosecuted for the offence of indecent assault of a woman. He pleaded not guilty but was convicted after trial and sentenced to 12 months’ imprisonment. The conviction was known to the Applicant’s villagers and his maternal uncle who were in Hong Kong. After his discharge from prison, the Applicant sought non-refoulement protection claiming his fear of being (i) unwelcomed by his family and fellow villagers; (ii) unable to find a marriage partner; and (iii) harmed or even killed by religious fanatics or Islamic extremists, if he returned to Pakistan. Details of the Applicant’s claim have been summarised by the Judge at §§1-6 of the CALL-1 Form.
7. By a Notice of Decision dated 28 June 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 Risk[2], BOR 3 risk,[3] and persecution risk[4].
8. The Applicant appealed the Director’s Decision to the Board. The Applicant’s appeal was scheduled to be heard before the Board on 23 October 2017. On the day of the hearing, he wrote to the Board to withdraw his appeal. Having regard to all available information before it, the Board was satisfied that the application for withdrawal was freely sought; that the Applicant understood the consequences of the withdrawal; and that there was good reason for the proposed withdrawal, namely, that the Applicant considered it safe to return to his home country. Accordingly, the Board allowed the Applicant’s application to withdraw his appeal, and gave directions that the appeal be withdrawn and the Director’s Decision be confirmed. The Board’s decision was sent to the Applicant by a letter dated 23 October 2017 issued by the secretariat.
9. One year later, the Applicant sought to re-open his appeal by the Applicant’s Letter sent to and received by the Board on 29 October 2018.
10. By the Secretariat’s Letter dated 30 October 2018, the secretariat replied that the Board had by its decision of 23 October 2017 disposed of his appeal against the Director’s Decision and no further action would be taken by the Board in respect of his appeal/petition.
DEPUTY HIGH COURT JUDGE TO’S DECISION
11. The Applicant filed a Form 86 seeking leave to apply for judicial review of the Director’s Decision, the Board’s Decision, the Applicant’s Letter, and the Secretariat’s Letter.
12. On 29 June 2021, Deputy High Court Judge To refused to grant leave to the Applicant to apply for judicial review.
13. Deputy High Court Judge To was of the view that there was no decision which could form the subject matter of judicial review. His reasons were set out at §§17-18 of Form CALL-1:
“17. The Board’s Decision was made as a result of the Applicant’s application and his assertion that his problems in Pakistan had been solved. The Board considered all relevant information and exercised due care in making the Decision. At the hearing, the Applicant confirmed that the Board did not know about the threat and that he was acting under coercion. He said that the secretariat or the Board did not know he was under threat. He agreed that the Board granted him leave to withdraw his appeal at his request. He had no real complaint against the Decision. In the Decision conveyed by the Secretariat’s Letter dated 23 October 2017, the secretariat informed the Applicant the Board’s Decision as follows:
‘… Under the circumstances, the Board has given direction that your appeal/petition is withdrawn. The Board has also directed that the immigration officer’s decision of 28 June 2017 is confirmed.
Please note that your appeal/petition has now been disposed of and finally determined by the Board. No further action will be taken by the Board in respect of your appeal/petition.’
Thus, the appeal has been disposed of and finally determined by the Board. The Director’s decision in the Notice dated 28 June 2017 was confirmed. There will be no further action to be taken by the Board. That was the Decision. The Applicant has no complaint about that Decision.
18. The Applicant’s real complaint was against the Board’s alleged decision as related to him via the Secretariat’s Letter dated 30 October 2018 refusing to re-open his appeal. In that letter, the secretariat enclosed a copy of its letter dated 23 October 2017 and drew the Applicant’s attention to the content of that letter in which the secretariat informed him of the Decision of the Board. The letter went on to explain the effect of its letter of 23 October 2017 as follows:
‘By our letter of 23 October 2017, you were advised the Board had granted you the request to withdraw your appeal/petition. The Board had also confirmed the immigration officer’s decision dated 28 June 2017 and disposed of your appeal/petition. No further action will be taken by the Board in respect of your appeal/petition.’
The secretariat only referred the Applicant to its letter of 23 October 2017 and explained to him the Decision given by the Board as related to him in that letter. The Applicant’s appeal had been disposed of a year ago. The Board made no decision. There was no decision which could form the subject matter of judicial review. Furthermore, the Applicant has failed to prove coercion to support his ground for judicial review.”
DEPUTY HIGH COURT JUDGE K W LUNG’S DECISION
14. Under Order 53, Rule 3(4) of the RHC, the Applicant could appeal against Deputy High Court Judge To’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.
15. On 19 July 2021, the Applicant made an application for an extension of time to appeal Deputy High Court Judge To’s order refusing to grant leave to apply for judicial review. On 10 August 2021, Deputy High Court Judge K W Lung refused to extend time for the Applicant’s appeal and dismissed his application.
THIS APPLICATION
16. By his summons dated 24 August 2021, the Applicant applied for an order to set aside Deputy High Court Judge K W Lung’s order of 10 August 2021. In his supporting affirmation dated 24 August 2021, the Applicant complained that: (i) there was a lack of language assistance; (ii) it was unfair that the judge never heard him in person; and (iii) his case was not determined fairly.
17. The Applicant’s written submissions dated 6 September 2021 are materially the same as his affirmation dated 24 August 2021.
DISCUSSION
18. In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
19. The prospect of success of an intended appeal is important, because the court will not grant an extension of time for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
20. The Applicant withdrew his appeal against the Director’s Decision to the Board on 23 October 2017. Once the Board dismissed the Applicant’s appeal upon a valid withdrawal or abandonment by the Applicant, in the sense of being the result of a deliberate and informed decision, the appeal was no longer extant and the Board became functus officio with no jurisdiction to take any further step regarding the appeal.: Re Das Purnima Rani [2019] HKCA 669, at §§41-42. Deputy High Court Judge To held that the Applicant had failed to prove that he made his decision to withdraw his appeal under coercion (see §19 of the CALL-1 Form). On that basis, the Deputy Judge was plainly correct to refuse to grant the Applicant leave to apply for judicial review.
21. The Applicant has not identified or demonstrated any error in Deputy High Court Judge To’s decision.
22. There is no merit in the Applicant’s complaint that there was a failure to provide language assistance. The high standard of fairness required for assessing a non-refoulement claim did not include the provision of interpretation service at any time that the Applicant wished or desired: Karamjit Singh (CACV 78/2018), at §21.
23. There is no basis for the Applicant’s complaint that he was not given an oral hearing. Deputy High Court Judge To heard the Applicant in person. The order of Deputy High Court Judge K W Lung is not material for the present purpose because the Applicant’s application for extension of time to appeal is considered by this Court afresh.
24. Finally, there is no merit in the Applicant’s complaint that his case was not determined fairly. A general assertion of this nature is not a viable ground of appeal.
25. Overall, the Applicant has no prospect of success in his intended appeal.
DISPOSITION
26. The application for extension of time to appeal is refused, and the Applicant’s summons of 24 August 2021 is dismissed.
| (Thomas Au) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The Applicant, unrepresented, acted in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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