RE HUSSAIN RIZWAN

CAMP 275/2023, [2024] HKCA 344

On Appeal From [2021] HKCFI 922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 275 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 692 OF 2018)

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J U D G M E N T

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

1.  On 9 August 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 25 July 2023 ([2023] HKCFI 1820)  (“the EOT Decision”)  refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 8 April 2021 ([2021] HKCFI 922)  (“the Leave Decision”)  refusing leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 18 April 2018 dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 18 August 2016 rejecting the applicant’s request to reopen his non-refoulement claim.

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

BACKGROUND

4.  The applicant is a national of Pakistan.  He raised a torture claim back in 2012, after which it was rejected by the Director.  On 3 June 2014, he then raised a non-refoulement claim on the basis that, if refouled, he would be harmed by the authorities owing to some land disputes.  Details of the applicant’s claim have been summarised by the Judge at [4] - [6] of the Leave Decision.

5.  The applicant failed to return his Supplementary Claim Form (“SCF”)  pursuant to section 37Y of the Immigration Ordinance (Cap 115)  (“the Ordinance”)  by the deadline of 27 April 2016 despite repeated reminders from the Director.  By a “Notice of Deemed Withdrawal of Non-refoulement Claim on Failure to Return Completed Supplementary Claim Form” dated 29 April 2016, the Director treated the applicant’s non-refoulement claim as withdrawn on all applicable grounds other than the risk of torture[1], namely, BOR2 risk[2], BOR3 risk[3], and persecution risk[4] pursuant to section 37ZG of the Ordinance.

6.  On 8 July 2016, the applicant requested the Director to reopen his claim.  On 19 July 2016, the Director wrote to the applicant requesting him to provide sufficient evidence to support his request on or before 2 August 2016, to which the applicant failed to reply.  As such, his request for reopening his claim was rejected by the director on 18 August 2016 (“the Director’s Decision”).

7.  On 17 May 2017, the applicant appealed against the Director’s Decision to the Board.  On 5 March 2018, the applicant attended an oral hearing before the Board.

8.  On 18 April 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [6] of the Leave Decision:

“6.  In its decision the Board found the Applicant’s explanation that he failed to return his SCF because he did not receive any of the letters or written notice from the Immigration Department not acceptable upon finding that he did receive those letters from the Immigration Department to his last reported address and to which he did either acknowledge or respond accordingly, that none of those letters from the Immigration Department had been returned through undelivered post, and concluded that the Applicant had failed to provide any evidence of any circumstances beyond his control which may have prevented him to return his SCF to the Immigration Department that his appeal was rejected.”

9.  On 20 April 2018, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  However, he merely repeated his claim that his life would be in danger in his home country but without putting forward any ground for his intended challenge.

THE JUDGE’S DECISION

10.  As the applicant did not request for an oral hearing, the Judge considered his application on paper.  On 8 April 2021, the Judge refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [7] - [10] of the Leave Decision:

“7. On 20 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would be in danger in his home country but without putting forward any ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not see any reasonably arguable basis for his intended challenge.

8. It is in fact noteworthy that on 9 March 2016 when the Applicant was provided with the blank SCF for him to complete with the assistance of legal representation from DLS at that time that he had had more than 5 months up to 18 August 2016 at least to submit to the Immigration Department as part of his evidence in support of his request to re-open his claim, but which even up to now in his present application that he has failed to do so, which is clearly one of his primary duties required by section 37ZA of the Ordinance as stated above in order to substantiate his claim, and for which none of his explanations of failing to receive any letters from the Immigration Department even if true could have been accepted as circumstances beyond his control, as the Board had correctly found in its decision.

9. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s case.

10.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

11.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision 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.

12.  On 6 June 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was over two years late with his intended appeal.

13.  On 25 July 2023, the Judge refused the applicant’s application for extension of time to appeal against the Leave Decision.  The Judge held that a delay of over two years was extremely substantial and inordinate and the applicant failed to give any good reason for his delay.  The applicant also failed to put forth any valid grounds of appeal, as such, the Judge held that there was no prospect of success in his intended appeal.

THIS APPLICATION

14.  By a summons and a supporting affirmation filed on 9 August 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In his summons, he failed to give any ground of his intended appeal.  In his supporting affirmation, he complained that the Board’s Decision had the effect of finality on his claim and made him liable to be removed.  The applicant then cited various case authorities and general legal propositions on Wednesbury unreasonableness and the high standard of fairness.  He then reiterated that his problem still persisted in his home country.

15.  Pursuant to the directions of the Registrar of Civil Appeals dated 9 August 2023, the applicant lodged his written submissions on 21 August 2023.  In those submissions, he reiterated the factual basis of his non-refoulement claim concerning land disputes.  In particular, he alleged that he and his brother Qamar Hussain had assaulted Rehmat Ali and his three sons causing them serious injuries over some land disputes in his home country.  He then fled from Pakistan to escape from law enforcement authorities for the crimes they had committed.  He then alleged that his life would be in danger if refouled as the authorities verbally assaulted his father for his whereabouts.  He also attached translated copies of what appeared to be two arrest warrants against his brother respectively dated 19 April 2006 and 26 August 2006 and four arrest warrants against the applicant respectively dated 15 April 2007, 17 August 2006, 26 August 2006, 20 March 2017.

DISCUSSION

16.  Following the approach 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.

17.  In deciding whether to extend time to appeal, the 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.

18.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

19.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

20.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

21.  In our view, the applicant’s delay of over two years is extremely substantial and inordinate.  The applicant has failed to give any reason, let alone good reason, to explain his delay.

22.  Further, there is also no substance in the applicant’s complaints. As a start, all the submissions now advanced by the applicant are new and not raised before the Judge.  It is trite that the applicant should not be permitted to raise new grounds for the first time in the Court of Appeal.  See: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  There is also no reason provided by the applicant as to why those arguments were not raised before the Judge. In any event, those submissions on case authorities and legal principles are all vague and bare allegations of which the applicant plainly fails to demonstrate how they are relevant to his case.  Further, the purported translated copies of the arrest warrants against the applicant and his brother are also new evidence, to which the applicant fails to demonstrate how they could satisfy the rules in relation to admission of fresh evidence on appeal as set out in Ladd v Marshall [1954] 1 WLR 1489 at p.1491.[5]  General assertions of his fear if refouled also do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

23.  Moreover, the main basis of the Board’s Decision is that the applicant failed to return his SCF within time and that he failed to provide any evidence of any circumstances beyond his control which might have prevented him to return his SCF to the Immigration Department.  Thus, pursuant to section 37ZG of the Ordinance, it was entirely open to and right for the Director and the Board to reach the conclusions as they did and refuse to reopen the applicant’s claim on the basis of the evidence before them.  We agree with the Judge that there was no error of law or procedural unfairness in the Board’s Decision.

24.  More importantly, the applicant failed to point out with specific particulars any error committed by the Judge in the Leave Decision.  We see no basis to interfere with the Leave Decision.

25.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

26.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 9 August 2023 is dismissed.