RE ALI SAIF

CAMP 116/2022, [2023] HKCA 854

On Appeal From [2021] HKCFI 2229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 116 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 655 OF 2021)

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J U D G M E N T

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

1.  On 30 July 2021, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant filed a summons in the Court of First Instance on 19 August 2021 for extension of time to appeal against the JR Decision.  In fact, he was not out of time as he had 14 days to file his appeal and the deadline fell within the Summer Vacation as provided in section 31(1) of the High Court Ordinance (Cap.4).

3.  On 23 February 2022, the Judge dismissed the Summons dated 19 August 2021 on the basis that the application disclosed no merit in the applicant’s intended appeal.

4.  On 19 April 2022, the applicant filed a summons in CAMP 116/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal against the JR Decision.  By this time, he was out of time.

5.  Pursuant to the directions made by the Registrar of Civil Appeals on 19 April 2022, the applicant should lodge his written submissions in support of the Summons on or before 3 May 2022.  However, he failed to do so.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

6.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

7.  The applicant is a national of Pakistan. He arrived in Hong Kong on 14 November 2014 with permission to remain as a visitor up to 21 November 2014.  He did not depart and overstayed.  He surrendered to the Immigration Department on 19 January 2015 and lodged his non-refoulement claim alleging that if refouled, he would be harmed or killed by his creditor Jagga and his men for failing to repay a loan taken out by him and his partner, who absconded with the money from their business.  The factual background of this case was succinctly summarised by the Judge at [2] – [3] of the JR Decision ([2021] HKCFI 2229).

8.  By a Notice of Decision dated 17 May 2018, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

9.  It was not until 30 September 2020 that the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision.  Pursuant to section 37ZS of the Immigration Ordinance (“IO”), a person who wishes to appeal against a decision made by the Director must file with the Board a notice of appeal within 14 days, which expired on 31 May 2018.  By then the applicant was late by 28 months.

10.  The applicant explained his delay in his Notice of Appeal as follows:

“I have just received news from my family members back at Pakistan that Jagga and his group of gangster had gone to my family home to search for me and threatened to kill me since the loan is long overdue and not repaid.

My family and I fear for my safety. My mother has asked me to seek non-refoulement protection again in Hong Kong SAR.” 

11.  As for the grounds of his intended appeal, the applicant stated in his Notice of Appeal:

“The Immigration department had under estimated the risk of me being killed upon return to Pakistan. Should the Department be wrong in its risk assessment and send me back to Pakistan, it will result in an irreversible harm to my body or even death.”

12.  The Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the applicant’s Notice of Appeal pursuant to Section 37ZT(2) of the IO. In a written decision dated 24 February 2021, the Board refused to allow the late filing of the Notice of Appeal.  The Board was satisfied that the Director’s decision as well as the appeal procedure had been properly explained to the applicant by his duty lawyer [21] and there was nothing to suggest any denial of justice or any unfairness to the applicant during the whole of the 1^st-tier screening process of his non-refoulement claim [22].  The Board had further considered the merit of the appeal pursuant to section 37ZT(2)(b) of IO and found that the grounds of appeal stated in the Notice of Appeal were unmeritorious, and that it was not satisfied that by reason of any special circumstances it would be unjust not to allow the late filing of the Notice of Appeal [24]. 

Application for leave to start judicial review

13.  On 7 May 2021 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)     The Director and the Board reached their decisions wrongly in assessing his non-refoulement claim as unfair and unreasonable.

(2)     The Board failed to give him sufficient time or opportunity to arrange relevant evidence for his claim and his appeal.

(3)     The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case which had led to an unfair outcome of rejecting his non-refoulement claim.

(4)     The Director failed to take into account the fact that the applicant had been tortured at the behest of the state law enforcement agencies, and the public officials failed to provide reasonable protection to its citizens under the duty of due diligence.

(5)     The Director had listed relevant COI which supported the applicant’s assertions that the police in his home country would not be able to protect him.  However, the Director failed to consider or give enough weight to those evidence and ruled otherwise.

(6)     This was a case of unfair attitude shown by the Director against the applicant which should render his decision void.  The corruption and incompetency of the administration in the applicant’s country is still a very serious problem and various human rights organizations have compiled reports on this matter which supported the applicant’s assertions.

(7)     The Director failed to attain the high standard of fairness required by the Wednesbury test which should render its decision as unreasonable in the scope of public law.  

The JR Decision

14.  The applicant attended an oral hearing on 15 July 2021.  After due consideration of the Board’s decision and the grounds of his intended challenge, the Judge refused leave for judicial review for the reasons set out in [10] - [21] of the JR Decision:

“10. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to consider State acquiescence in his claim, or in what way did the Director fail to apply high standard of fairness in the determination of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

11. In fact none of these grounds are relevant to the Board’s decision in refusing his seriously late filing of his Notice of Appeal, and at the hearing of his leave application, the Applicant produced a patch of medical certificates which he claims to support his explanation for his late filing of his Notice of Appeal due to his various medical problems but which he claims not to have the opportunity to produce them to the Board when his application for late filing was dealt with in his absence without a hearing.

12. This complaint of the Applicant that the Board had dealt with his application for late filing of his Notice of Appeal in his absence without a hearing can be easily disposed of as not arguable, as Section 37ZT(2) of the Ordinance clearly stipulates that the Board is to deal with such application without any hearing, and that the Applicant could have presented such documentary evidence by attaching them to Section 5 of his Notice of Appeal at that time in support of his application for late filing, but as found by the Board in its decision ([18]), the Applicant had never raised any medical issue for his delay in Section 5 of his Notice of Appeal.

13. Even if these documents were to show that the Applicant was indeed having some medical issues, of which he did not elaborate at the hearing but just claimed that he was only able to obtain them after his recent release from prison after having served a 4-year sentence for a drug-related offence, a close examination of them show that they would not assist the Applicant’s case in his present application.

14. These documents can be categorized in chronological order as follows:

(a)  Princess Margaret Hospital X-Ray Examination Report dated 4 October 2019 on renal problem;

(b)  Princess Margaret Hospital X-Ray Examination Report dated 25 October 2019 on right shoulder pain;

(c)  Princess Margaret Hospital X-Ray Examination Report dated 12 February 2020 on spine problem;

(d)  Queen Elizabeth Hospital Appointment Slip for spinal examination on 15 July 2021;

(e)  Queen Mary Hospital Admission Slip for colonoscopy examination on 22 July 2021; and

(f)  Queen Mary Hospital Appointment Slip for liver examination on 10 December 2021.

15. Firstly, none of these documents show that the Applicant had in fact been so incapacitated to the extent that he was unable to file his Notice of Appeal within time on or before 31 May 2018.

16. Secondly, and more relevantly, the earliest medical issue that these documents indicate had occurred in late 2019, and if it were indeed a relevant circumstance that had affected the Applicant with the filing of his Notice of Appeal, by then he would still have been seriously out of time by more than one year, for which it certainly cannot be accepted as a good reason for such an inordinate delay even if he may have been in prison where there would be assistance available for filing of court documents, and in my view would not have assisted the Applicant’s application for the late filing of his Notice of Appeal even if these documents had been placed before the Board for determination.

17. In considering whether or not to allow the late filing of a notice of appeal, the Board is required by Section 37ZT(2) of the Ordinance to take account of (i) the reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and (ii) any other relevant matters of fact within its knowledge so as to be satisfied whether there is any special circumstances to make it unjust not to allow the late filing of the notice of appeal. 

18. In the Applicant’s case, the Board in correctly finding that he had not provided any good or valid reason for his serious delay, did proceed to evaluate all the circumstances of his application with the applicable legal provisions, as well as all the relevant matters of fact within its knowledge, including the merits of the appeal as it so reminded itself of the Court of Appeal’s decisions of Khan Kamal Ahmed CACV 563/2018 [2019] HKCA 377 (2 April 2019) and Qasim Ali CACV 547/2018 [2019] HKCA 430 (8 April 2019), and correctly concluded that there is nothing disclosed in the facts asserted by the Applicant which would amount to special circumstances to justify allowing the seriously late filing of his Notice of Appeal (see [16] and [23]-[24] of the decision).  

19. 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 the Director’s consideration and assessment of the Applicant’s claim or in the Board’s refusal to allow the late filing of his Notice of Appeal.

20. The fact is that, and of which the Board did also review (see [24] of its decision), it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKCA 526.

21. 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.”

Application for extension of time to appeal the JR Decision

15.  On 19 April 2022, the applicant filed the Summons to this court for an extension of time to appeal against the JR Decision. 

Discussion

16.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

17.  As for (1), as mentioned earlier, the applicant in fact was not out of time when he filed his summons to the lower court seeking leave to appeal against the JR Decision on 19 August 2021. However, by the time he took out the Summons in this court, he was indeed out of time.    

18.  As for (2), the reasons for the delay, although the initial period when he was processing his application for leave in the lower court is understandable, the applicant failed to provide any explanation for his further delay in issuing the Summons in this Court. 

19.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant did not advance any proper or valid proposed grounds of appeal, or any particulars of any error in the JR Decision save for saying that he did not agree with the JR Decision.

20.  It is clear from the Board’s decision that it had followed the 3-stage test as laid down in The Secretary of State for the Home Department v Begum[5]; it found that the delay of 28 months was serious and significant, and the bare assertion that the applicant was informed by his family that his creditor was looking for him was an unsatisfactory explanation for the delay.  The Board also examined the merit of the intended appeal and came to the conclusion that in all the circumstances of the case, it would not be unjust to reject the application for late filing of the applicant’s notice of appeal.  We agree with the Judge that the Board had properly exercised its discretion in refusing the late filing of the appeal according to section 37ZT(2) of IO.  We agree with the judge that there are no errors of law or procedural unfairness or irrationality in the proceedings before the Board.   

21.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we agree with the Judge that the applicant’s complaints are not reasonably arguable and leave for judicial review should be refused.

22.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 19 April 2022.