RE RAJA IBRAR HUSSAIN

CAMP 65/2021

[2021] HKCA 1665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 65OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1753/2018)

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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 KW Lung given on 10 June 2020 refusing leave to the applicant 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 (“Board”) dated 27 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 13 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He last entered Hong Kong on 21 March 2008 illegally and was arrested by the police on 14 January 2009.  He made a torture claim which was dismissed by the Director and the Board, he then lodged a non-refoulement claim on 22 November 2013. 

3.  The applicant’s claim was based on threats from his paternal uncles arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 7 January 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1] and the persecution risk^[2].

5.  The applicant appealed to the Torture Claims Appeal Board.  The Board dismissed the appeal on ­17 February 2017 (“First Board Decision”) without an oral hearing. At [42] of the First Board Decision, the Board found that the police in Pakistan will act if the paternal uncles of the applicant threaten to cause harm upon his return.  At [44] – [45], the Board noted that the applicant did not suffer any harm in the period between the last incident and the time he left Pakistan and took the view that he did not face any genuine and substantial risk of being subject to ill treatment.  The Board was also satisfied at [52] that internal relocation would be viable.

6.  By a Notice of Further Decision dated 13 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[3], and decided against him.

7.  The applicant again appealed to the Torture Claims Appeal Board.  As the applicant was late in filing the Notice of Appeal/Petition, the Board had to decide whether to allow the late filing of the notice.

8.  After considering the applicant’s explanation for the delay, the Board held that the delay was inexcusable and refused to allow the late filing of the notice.  The Board further considered, without a hearing, the merits of the applicant’s case.  The Board held that even if the Board allowed the late filing of the notice, the applicant not be able to establish his claim based on BOR2 risk. Both decisions are contained in its decision dated 17 August 2018 (“Second Board Decision”). 

The judge’s decision

9.  The applicant filed a Form 86 on 27 August 2018 seeking to judicially review the Second Board Decision which contained no ground for seeking relief.

10.  In his affirmation in support of the leave application filed on 27 August 2018, the applicant deposed that the decisions of the Director and the Board are unlawful without explaining why that was the case. He also claimed that it would be dangerous for him to return to Pakistan.

11.  The applicant was absent from the oral hearing fixed for 16 October 2019 before the judge.  The judge therefore dealt with the application on paper.

12.  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 [14] to [18] of the CALL-1 Form:

“14. It is obvious that the Board had considered the merits of the applicant’s appeals.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.’

16. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018) at §42 held that the Board’s decision is final, subject to judicial review by the court. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to the case.

17. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

18. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

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 7 October 2020, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ P. Li on 23 February 2021.

14.  By a summons filed on 2 March 2021, the applicant applied for an extension of time to appeal against the decision of DHCJ P. Li (stated to be dated 2 February 2021 but taken to mean the decision on 23 February 2021).  In the summons he stated that:

“1 – The decisions are unlawful.

2 – The Decisions failed to take into account many things and assues” 

15.  In his skeleton submissions lodged on 3 May 2021, the applicant submitted that he sought leave to appeal against the decision by the judge dated 10 June 2020 and the decision by DHCJ P Li.  He claimed that the decisions by the Board and the Director were unlawful and failed to take into account “many things and [i]ssues”. He also submitted that it is unsafe for him to return.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

17.  In cases where (like the present case) the judge refused to grant extension of time to appeal, the proper application for an applicant to make is to renew such application before this court instead of appealing against the refusal to grant extension of time: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104.  We therefore treat the application in the summons dated 2 March 2021 as a renewed application for extension of time to appeal.

18.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

19.  In the summons dated 2 March 2021, the applicant claimed that the “decisions” failed to take into account “many things and [i]ssues” but he did not provide any particulars.  This ground is therefore not reasonably arguable.

20.  As for the grounds raised in the written submission, they are not related to any error by the judge.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker.  On an intended appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.  None of those grounds are viable grounds of appeal.

21.  We therefore 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 2 March 2021 is dismissed accordingly.