RE IQBAL MUHAMMAD AZHAR

CAMP 388/2021

[2022] HKCA 253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 388 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2773/2018)

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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 DHCJ KW Lung (“the Judge”)  dated 27 July 2021 refusing to grant 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 (“the Board”)  dated 27 November 2018 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 16 January 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Pakistan.  He last entered Hong Kong illegally on 19 May 2016.  He surrendered himself to the Immigration Department on 20 May 2016, and thereafter lodged a non-refoulement claim on 9 August 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by Shia Muslims should he be refouled because he was an Imam of a mosque for Sunni Muslims.  The details of the applicant’s claim have been summarised by the Judge at [4] to [6] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 16 January 2018, 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 14 September 2018, the Board dismissed the appeal on 27 November 2018.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found that the applicant was not a credible witness.  Accordingly, the Board found that the applicant had failed to establish the material facts underlying his claim.

The Judge’s decision

6.  The applicant filed a Form 86 on 5 December 2018 seeking to judicially review the Board’s Decision.  The grounds put forward by the applicant in the Form 86 and his supporting affirmation were convoluted and repetitive, but the Judge helpfully summarised them at [12] of the CALL-1 Form as follows:

“(1)  Error of law: failing to consider state acquiescence or the extended form of state acquiescence; failing to give weight to relevant information, but giving weight to irrelevant information instead; failing to consider consistent system of human rights violations; failing to consider the COI; apply improper basis for internal relocation; no proper basis to reject the applicant’s evidence;

(2)  Procedural unfairness: failing to provide interpretation for the hearing bundle; failing to provide legal representation at the Board’s hearing; failing to call for psychiatric reports; insufficient inquiry into the matter; failing to provide hearing for BOR 2 risk;

(3)  Wednesbury unreasonableness or irrationality: cherry pick COI materials not officially recognized or hearsay evidence; coming to conclusion despite shortcomings of the above.”

7.  After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [20] of the CALL-1 Form:

“13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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

‘13. …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.’

15.  The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

16.  The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 held:

‘13. … it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].’

17.  His grounds in support of his application are sweeping and quite irrelevant to his case.  For example, he did not raise the issue of psychiatric problems himself before the immigration officer or before the Board.  There is simply no ground for him to raise this complaint.  Those authorities above have addressed his complaints.  The other complaints are his opinions and comments without any evidence or specifics in support of them.  They do not assist his application.  The Board had rejected his evidence on the facts of his claim.  He has no factual basis in support of his claim.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

20.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The present application for extension of time to appeal

8.  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 his last known address in To Kwa Wan, Kowloon (“TKW Address”)  on 27 July 2021, and was not returned undelivered.

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  According to Order 59 rule 3(1), an appeal to this court must be brought by motion in the form of a Notice of Appeal.

10.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 27 July 2021.  He did however take out a summons in the Court of First Instance on 18 August 2021 seeking an extension of time to appeal.  He contended that he did not receive a copy of the Judge’s decision. 

11.  The applicant’s application for leave to appeal out of time was dismissed by the Judge on 2 September 2021[6].

12.  By a summons filed on 14 September 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he did not receive the sealed order or the CALL-1 Form and only obtained the same after searching the court file.

13.  In his written submissions dated 27 September 2021, the applicant referred to ST v Director of Immigration (sic)[7] [2014] 4  HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1  HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1)  that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2)  that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3)  that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

Discussion

14.  Having considered the papers and the applicant’s written submissions, 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.

15.  The applicant contends that he did not receive the CALL-1 Form or the Judge’s sealed order within 14 days of the decision, and that he only became aware of the same after conducting a court search.

16.  In this regard, we note that the Form 86 was filed in 2018, whereas the applicant’s application for extension of time before the Judge was taken out on 18 August 2021, which was around 3 weeks after the Judge’s decision dated 27 July 2021.  We further note that the applicant’s address as stated in the Form 86 was his TKW Address, whereas according to his summons filed on 18 August 2021, he had moved to an address in Sham Shui Po, Kowloon (“SSP Address”).

17.  In our view, given the short intervening period between the handing down of the Judge’s decision on 27 July 2021 and the applicant’s application for extension of time before the Judge, and the fact that these proceedings commenced in 2018, it is unlikely that the applicant had, as alleged, coincidentally conducted a court search for the judgment in or around August 2021, and that he had become aware of it by such means.  It seems more likely that he had previously moved to the SSP Address, and might nonetheless still have been able to receive post at the TKW Address, but may only have become aware of the Judge’s decision after the time for appealing had expired.

18.  In any event, it was incumbent upon the applicant to promptly inform the court of any changes in his correspondence address, particularly when there was a pending judgment in proceedings to which he was party.

19.  In the circumstances, we do not accept the applicant’s explanation or reason for his delay in lodging his intended appeal.

20.  We have nonetheless proceeded to consider the merits of the intended appeal.

21.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed by the Judge.

22.  In any event, it is well-established that it is necessary, on an appeal such as this, to identify errors in the judgment below.  The applicant has 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.  Turning to the written submissions and the well-established legal principles cited therein, there was no attempt by the applicant to explain whether and, if so, how they had been disregarded or contravened in the processing of his non-refoulement claim.

24.  In any event, the grounds advanced by the applicant are vague and lack particulars, and should also be rejected for this reason.

25.  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 14 September 2021 is accordingly dismissed.