RE HUSSAIN MUHAMMAD ASIF

CAMP 175/2018

[2019] HKCA 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLAANEOUS PROCEEDINGS NO 175 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 720/2017)

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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 Deputy High Court Judge Josiah Lam given on 29 May 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 22 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 26 April 2016 and 17 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 31 July 2014 illegally and was arrested by the police on 3 August 2014.  He lodged a non-refoulement claim on 6 August 2014. 

3.  The applicant’s claim was based on threats from his relatives because of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [2] to [8] of the CALL-1 Form.

4.  By a Notice of Decision dated 26 April 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 17 August 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 18 August 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 22 September 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [25] – [48] of the Board’s Decision, the Board gave reasons for not accepting the evidence of the applicant.  The Board was also satisfied at [55] that state protection would be available for the applicant and at [85] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 6 October 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 6 October 2017, the applicant advanced the following grounds for judicial review which are summarised below:

(i)   lack of legal representation;

(ii)   lack of language assistance;

(iii)   no reasons given by the Director in his Further Decision; and

(iv)   lack of fair hearing.

10.  The applicant was absent from the oral hearing before the judge fixed for 27 April 2018.  The judge went on to deal with the application on paper.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [32] to [46] of the CALL-1 Form:

“32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

33. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

Ground (a): Lack of legal representation

34. The Applicant complained that he had not been provided with legal assistance with respect to the Director's consideration of BOR2 risk and the appeal to the Board.

35. The Applicant had legal assistance from the Duty Lawyer Service up to the Director's decision rendered on 26 April 2016.

36. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation in the later stages of the screening process. There is no substance in Ground (a), which must fail.

Ground (b): Lack of language assistance

37. The Applicant complained he had not been given sufficient interpretation/ translation assistance.

38. The Applicant’s Form 86 and affirmation were quite well-presented. Even if they were not prepared by the Applicant himself, those documents at least show he could find someone to assist him with interpretation/translation and dealing with documents for his claim. I am sure that was the case at all material times. The Applicant has much exaggerated his problem of getting interpretation/translation assistance and handling documents. Ground (b) fails.

Ground (c): No reasons given by the Director in his further decision dated 17 August 2017

39. The Applicant complained the Director did not give reasons for his further decision on BOR2 risk.

40. The Director’s further decision on BOR2 risk dated 17 August 2017 was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 26 April 2016, where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It is sufficient for the Director to express as he did in his further decision dated 17 August 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 26 April 2016. Ground (c) fails.

Ground (d): Lack of fair hearing

41. The Applicant complained again about lack of legal assistance and language assistance, which have already been dealt with in Ground (a) and Ground (b) above.

42. The Applicant criticised the Director for not attending the appeal hearing before the Board on 18 August 2017. He deduced that the Director was not concerned about his case. There is no substance in this criticism. I cannot see how the Applicant’s non-refoulement claim was prejudiced by the Director’s being excused from that appeal hearing.

43. The Applicant also criticised the Director for assuming he chose not to reply to the request for additional facts with respect to the consideration of BOR2 risk.

44. Apparently, the Applicant had received the Director's letter inviting him to submit additional facts for the consideration of BOR2 risk. He asked for time and the Director extended the deadline to 12 August 2017. Yet he failed to submit further information/documents by the extended deadline or thereafter. The Applicant's complaint had no basis. Ground (d) fails.

45. In my judgement, the Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. They had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable.

Conclusion

46. The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

12.  According to the court’s records, a copy of the CALL-1 Form and the sealed copy of the judge’s order were sent to the applicant on 29 May 2018.

Application for extension of time to appeal and grounds for appeal

13.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 2 October 2018, the applicant sought leave to appeal out of time.  His application was dismissed by Deputy High Court Judge Bruno Chan on 20 November 2018.

14.  By a summons dated 23 November 2018, he renewed his application for an extension of time to appeal before this court.  The applicant did not give gave any ground of appeal in the summons. Nor did he provide a draft Notice of Appeal.  In the affirmation filed on the same day in support of his application, the applicant said that he was “informed that the [Director] and [the Board] did not [see] the grounds to reverse their decisions”.  He submitted that the merit of this ground of appeal constituted sufficient reasons for the court to exercise its discretion in allowing the appeal out of time.

15.  In his skeleton submissions dated 12 December 2018, the applicant submitted that:

(i)   he was refused legal aid and did not have proper legal representation before the judge;

(ii)   he did not have consistent help with English documents which was procedurally unfair; and

(iii)   the Board only drew negative inferences against his case when evaluating the Country of Origin Information (COI).  The judge should have held that this was an error of law.

Discussion

16.  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.

17.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  The delay was not insubstantial and the application can be disposed of on this ground alone.  That said, we shall nonetheless go on to consider the merits of the intended appeal. 

18.  The sole ground raised in the affirmation dated 23 November 2018 is vague.  The applicant failed to give any particulars for this ground.  It is thus not a viable ground of appeal.

19.  As for the ground in the skeleton submission concerning COI, we observe that this ground was never raised as a ground for judicial review before the court below.  It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)). 

20.  As for the ground based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation before the judge caused any prejudice in the leave application.

21.  In relation to the ground based on the lack of language assistance, the applicant said that he had some language assistance but he did not have a good grasp of the proceedings.  We note that the applicant was able to provide court documents in English.  He identified the alleged errors committed by the judge and made submissions on those alleged errors.  There is nothing to suggest that the applicant suffered any real prejudice from the alleged lack of language assistance. 

22.  For these reasons, we do not see any prospect of success in the intended appeal. We will not grant extension of time for a hopeless appeal.  The summons of 23 November 2018 is dismissed accordingly.

23.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.