RE SHAKEEL

CAMP 180/2023, [2025] HKCA 470

On an intended appeal from [2023] HKCFI 90

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 180 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 178/2019)

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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 13 January 2023 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 29 October 2018 (“the Board’s 2^nd Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 10 Mach 2017 rejecting the applicant’s non-refoulement claim based on the BOR 2 risk[1] (“the Director’s 2^nd Decision”).

Background

2.  The applicant is a national of Pakistan.  He last entered Hong Kong on 30 July 2003 as a visitor, but he overstayed and was arrested by the police on 12 January 2008.  Thereafter, he raised a non-refoulement claim by way of a written representation dated 20 June 2008.

3.  The applicant’s claim was based on a fear of being harmed or killed by local Muslims (some of whom were his friends)  due to religious differences.  The details of the applicant’s claim have been summarised by the Judge at [3] and [4] of his decision (“the CALL-1 Form”)[2].

4.  By a Notice of Decision dated 11 July 2014 (“the Director’s 1^st Decision”), the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the torture risk[3], the persecution risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board against Director’s 1^st Decision.  After a hearing on 12 December 2014, the Board dismissed the applicant’s appeal by its Decision dated 10 September 2015 (“the Board’s 1^st Decision”).  In dismissing his appeal, the Board found, inter alia, that the applicant was unable to, on the evidence adduced, establish that he would face a genuine and substantial risk of harm if he was refouled.  In any event, there are suitable options of internal relocation (such as to Mehmood Bad and Golimar)  available to the applicant which would reduce or minimise the risk of harm, if any.

6.  Subsequently, another ground for non-refoulement protection, i.e. the BOR 2 Risk, became available to the applicant, and his claim was additionally assessed on such risk.

7.  By a letter dated 28 December 2016, the applicant provided additional information in support of his claim based on the BOR 2 Risk, which the Director duly considered (see [4] of the Director’s 2^nd Decision).  The Director concluded, inter alia, that there is nothing from the collective evidence to suggest that the applicant’s alleged enemies would cause him serious harm should he return to Pakistan (the Director’s 2^nd Decision, at [11]).  By the Director’s 2^nd Decision, the applicant’s claim based on the BOR 2 Risk was also rejected.

8.  The applicant appealed to the Board against the Director’s 2^nd Decision, for which a hearing was fixed on 20 July 2018.  The Board concluded that as the applicant had committed no crime or act which would subject him to the risk of capital punishment without due process of the law in Pakistan, his claim based on the BOR 2 Risk was not made out.  Accordingly, his appeal against the Director’s 2^nd Decision was also dismissed.

The Judge’s decision

9.  The applicant filed a Form 86 on 18 January 2019 seeking to judicially review the Board’s 2^nd Decision (but not the Board’s 1^st Decision).  The grounds relied upon by the applicant were summarised by the Judge at [15] of the CALL-1 Form:

“(1)  Misdirection in law: the adjudicator misdirected himself [sic] on the law by taking into account that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.

(2)  Procedural impropriety / unfairness: failure to carry out sufficient research and inquiry into the COI conditions with regard to the applicant’s circumstances; failure to call for psychological and psychiatric evaluations and reports; the adjudicator applied the incorrect standard of proof; and failure by the assigned duty lawyer resulted in lack of legal representation.

(3)  Irrationality: failure to consider the updated COI and give due weight to it, and the decision is therefore Wednesbury unreasonable; failure to making a finding of the fact as to whether there exists in Pakistan a constant pattern of gross flagrant or mass violation of human rights; failure to analyze and assess state protection in Pakistan, without due regard to the extended state protection; the adjudicator took into account irrelevant considerations or did not take into account relevant considerations, cherry picking COI without regard to the COI in favour of his case.”

10.  After summarising 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 his reasons in refusing leave to apply for judicial review at [16] to [25] of the CALL-1 Form:

“16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

18.  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.’

19.  As to the grounds in support of the applicant’s application as set out in paragraph 15 supra, they do not assist his application. Most of the grounds are his personal opinions or comments without evidence in support. The Board has to take into account of his past treatment or experience in order to project the probability of him being subjected to the risks if he returns to Pakistan. There is nothing amiss in this approach. The applicant had raised no issue on his psychology or psychiatric condition at the hearing. Naturally, the Board did not raise these issues and call for the reports. All the grounds fail.

20.  I have borne in mind that in Form 86, the applicant seeks to challenge the Board’s Second Decision, which is on BOR 2 only. The other risks (the Torture risk, the BOR 3 risk and the Persecution risk)  had been dealt with in the Board’s First Decision. Although he also mentioned these risks in Form 86, they are not the subject matter of the Board’s Second Decision. If the applicant is to challenge the Board’s First Decision as well, he is seriously out of time. But he has not given any explanation for his delay. For this reason alone, his application for extension of time to apply for leave to apply for judicial review of the Board’s First Decision has to be dismissed.[1] In any event, the applicant has not been able to raise any valid grounds to challenge the Board’s First Decision. The Court should not extend time for the applicant to apply for leave to apply for judicial review of the Board’s First Decision.[2]

21.  The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held

‘59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017)  64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016)  at [52].’

22.  There is no valid reason from the applicant to challenge the Board’s Second Decision.

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

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

CONCLUSION

25.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

11.  The applicant stated in his Form 86 that his address of service at the time was at 284 Reclamation Street, Mong Kok (“the 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 Address on 13 January 2023, which were not returned undelivered.

12.  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 13 January 2023.

13.  The applicant thereafter took out a summons in the Court of First Instance on 10 March 2023 seeking extension of time to appeal, in which his address was stated to be at 251-255 Yu Chau Street, Sham Shui Po (“the New Address”).  In the supporting affirmation of the same date, he contended that the Judge’s decision was reached unfairly as he was not afforded an opportunity to “clarify [his] case and situation in [his] country”.  He also claimed that he was disadvantaged in the proceedings by reason of his lack of legal representation and because he was “illiterate”.

14.  The applicant’s application to appeal out of time was dismissed by the Judge on 27 April 2023[6].

15.  By a summons filed on 4 May 2023, the applicant renewed the application for an extension of time to appeal before this court.  He stated in the summons that he “did not get the high court letter on time”.

16.  In his written submissions lodged on 17 May 2023, the applicant repeated the alleged factual background to his non-refoulement claim, the dangers he allegedly faced if he was refouled, and that he apparently did not “get the [Judge’s] decision” in time.  

Discussion

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.

18.  As noted above, the Judge’s Decision was sent to the last known address of the applicant at the time (which was the Address)  and was not returned undelivered.  The inference which may be readily drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.  The applicant’s contention that he did not receive or have knowledge of the Judge’s decision within the 14-day period as from 13 January 2023 thus without merit.

19.  In any event, even if the CALL-1 Form was not received by the applicant at the Address (as he claims), it is incumbent upon the applicant to update the court of his correspondence address promptly, in this case his move to the New Address, and he must bear the consequences of his failure to do so. Further, there was no explanation on the part of the applicant as to when he eventually came to learn of the Judge’s decision.

20.  In the circumstances, we consider that the applicant has failed to provide any reasonable explanation for the delay in lodging his intended appeal.

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

22.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its 2^nd Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

23.  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.

24.  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.

25.  We note that notwithstanding the applicant’s contention that he was not afforded an opportunity to make submissions on his case before the Judge, a hearing of the leave application was in fact fixed for him on 19 October 2022 in accordance with his request for an oral hearing, but on the date of the hearing he was absent without explanation (see [2] of the CALL-1 Form).  There is therefore no merit in this complaint.

26.  We are also unpersuaded by the applicant’s complaint of the lack of legal representation, as this court has repeatedly held that it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  It suffices for legal representation to be provided at the initial stage, with subsequent legal representation being provided on a merits basis.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

27.  Further, the applicant’s complaint of prejudice by reason of his lack of proficiency in English appears unfounded.  We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

28.  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 4 May 2023 is accordingly dismissed.