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CAMP 149/2022
[2022] HKCA 1867
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 149 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 592/2019)
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| RE: |
AHMAD AQEEL |
Applicant |
____________________
Before: Hon Cheung JA and Barma JA in Court
Date of Judgment: 30 December 2022
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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 DHCJ Bruno Chan dated 9 September 2021 refusing to grant an extension of time to appeal against the decision of DHCJ CP Pang (“the Judge”) dated 21 January 2021, in which the Judge refused leave for the applicant to apply for judicial review against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 17 January 2019 and the Director of Immigration (“the Director”) dated 9 February 2017 (“the Director’s Decision”) by which the applicant’s appeal and non-refoulement claim were respectively refused.
Background
2. The applicant is a national of Pakistan. He arrived in Hong Kong illegally on 8 March 2016, and he was later arrested by the police on 23 March 2016 and referred to the Immigration Department. On 13 April 2016, the applicant lodged a non-refoulement claim.
3. The applicant’s claim was based on a fear of being harmed or killed by a member of the ruling political party. The details of the applicant’s claim have been summarised by the Judge at [2] and [3] of his decision (“the CALL‑1 Form”)[1].
4. By a Notice of Decision dated 9 February 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].
5. The applicant appealed to the Board. After a hearing on 31 October 2018, the Board dismissed the appeal on 17 January 2019. The Board’s Decision covered all four grounds for non-refoulement protection. The Board was of the view that the applicant could not explain away the inconsistencies in his evidence, rendering him an untruthful witness who manufactured his claims. For these reasons the applicant’s appeal was refused.
The Judge’s decision
6. The applicant filed a Form 86 on 1 March 2019 purportedly seeking to judicially review both the Director’s and the Board’s Decisions.
7. In his supporting affirmation, the applicant set out his grounds of review, which, as summarised by the Judge at [12] of the CALL‑1 Form, were:
“(1) The Director and the Board were unreasonable and unfair. They failed to give him sufficient time and chance to arrange relevant evidence.
(2) The Director failed to appreciate or give proper importance to the presence of state acquiescence.
(3) The Director failed to take into proper account of the COI.
(4) The Director showed an unfair attitude.”
8. Before considering the merits of the applicant’s case, the Judge (at [14]) noted that according to the principles in Re Moshsin Ali [2018] HKCA 549the Director’s Decision was superseded by the Board’s Decision and was therefore no longer susceptible to judicial review. He therefore correctly treated the applicant’s intended judicial review as against the Board’s Decision only.
9. After summarizing the facts and background of the case and giving due consideration to the Board’s Decision and the Director’s Decision, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [15] to [25] of the CALL‑1 Form:
“15. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found him to be an incredible witness. The Board rejected his account of primary facts based on the major inconsistencies and contradictions in his evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds. In any event, the Board found the option of internal relocation reasonable and not unduly harsh.
16. As explained above, the assessments of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.
17. The grounds put forward by the applicant for his intended judicial review appear to be boilerplate grounds used by many other applicants. They are bare general assertions without specifics and unengaged with the Board’s reasoning. The Board plainly properly considered all the evidence and issues giving detailed reasons for its decision. All the grounds are without merits.
18. Indeed, the applicant delayed in lodging the claim for protection after he came to Hong Kong. Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. I agree with the Board that it could be taken into account as damaging the applicant’s credibility.
19. Further, even if one gives the claimed account of events the most favourable interpretation, the applicant was not of a senior rank position in his political party. There was no valid reason why the opposition party would target the applicant and still wish to pursue the applicant after so many years. In any event, his enemy political party has lost power while his own party has succeeded at the national level.
20. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.
21. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.
22. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.
23. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.
24. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.
Disposition
25. Accordingly, leave to apply for judicial review is refused.”
The present application for extension of time to appeal
10. The applicant’s address as stated in his Form 86 was at No 28 Kweilin Street, Sham Shui Po (“the Kweilin Street Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Kweilin Street Address on 21 January 2021. This letter was not returned undelivered.
11. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 21 January 2021.
12. The applicant took out a summons in the Court of First Instance on 24 May 2021 seeking extension of time to appeal, in which his address was also stated to be the Kweilin Street Address. He stated in his supporting affirmation that he was unrepresented and had no means to instruct a lawyer. He added that he “understand[s] that there is a good ground of appeal” which was not considered by the Judge, without providing particulars.
13. The applicant’s application to appeal out of time was dismissed by DHCJ Bruno Chan on 9 September 2021[6].
14. By a summons filed on 11 May 2022, the applicant renewed his application for an extension of time to appeal before this court. In the summons, the applicant stated that he sought leave to appeal out of time against the decision dated “9 September 2021”, being DHCJ Bruno Chan’s refusal to grant an extension of time for him to appeal against the Judge’s decision dated 21 January 2021. Although the application purported to seek leave to appeal against the decision of DHCJ Bruno Chan dated 9 September 2021, we shall treat it as a renewed application for an extension of time against the substantive decision of the Judge dated 21 January 2021, by which leave for judicial review was refused.
15. In his supporting affirmation filed on the same date, the applicant repeated that he did not have access to legal advice.
16. In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submission with the court. He is thus deemed to have abandoned his right to rely on written submissions.
17. 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. We have, therefore, determined the applicant’s application on the basis of the documents filed.
Discussion
18. As noted above, the Judge’s decision dated 21 January 2021 was sent to the last known address of the applicant (which at the time was the Kweilin Street Address) on the same day, and was not returned undelivered. The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period within which he was permitted to lodge the intended appeal.
19. In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal. Moreover, the extension of time application before DHCJ Bruno Chan was taken out by the applicant more than 15 weeks after the expiry of the 14-day period within which he was permitted to appeal against the decision of the Judge. There was a further delay of 8 months in respect of his present renewed application for extension of time before this court. The delay is substantial, and the application is liable to be dismissed on this basis alone.
20. However, we have also proceeded to consider the merits of the intended appeal.
21. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
22. The applicant provided no ground of appeal in his summons to this court and only stated in his supporting affirmation that he had been advised that there was a good ground of appeal, but did not explain what that ground might be. He has thus failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
23. It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge. This has clearly not been done here.
24. For these reasons, we do not see any prospect of success in the intended appeal. This court will not grant an extension of time for a hopeless appeal. The summons filed on 11 May 2022 is accordingly dismissed.
(Peter Cheung)
Justice of Appeal |
(Aarif Barma)
Justice of Appeal |
The applicant acting in person
[1]
[2021] HKCFI 129
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6]
[2021] HKCFI 2643
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