RE MOHAMMED WASEEM

CAMP 123/2023, [2024] HKCA 339

On Appeal From [2022] HKCFI 2689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 123 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2788 OF 2018)

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J U D G M E N T

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

1.  On 27 March 2023, the applicant took out a summons to reapply for extension of time to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 1 September 2022 ([2022] HKCFI 2689) (“the Leave Decision”) refusing to grant extension of time and dismissing his application for leave to apply for judicial review.  On 2 February 2023, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 237) (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 29 October 2018, dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 11 May 2018 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The applicant is a national of India.  He last entered Hong Kong on 16 May 2007 as a visitor using an assumed name and was permitted to remain until 18 May 2007.  He applied for extension of stay on 22 May 2007, claiming he had lost his passport.  Thereafter, he overstayed.  He was arrested on 8 December 2008.  On 11 December 2008, he raised a torture claim which was rejected by the Director on 23 August 2013 and the appeal was later dismissed on 12 November 2013.  On 11 September 2013, he raised a non-refoulement claim on the basis that he would be harmed by his paternal uncle (“Yusuf”) upon his return because of a property dispute.  Details of the applicant’s claim have been summarised by the Judge at [5] ‑ [13] of the Leave Decision.

5.  By a Notice of Decision dated 11 May 2018 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds other than risk of torture[1], namely, BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  On 29 October 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [14] ‑ [22] of the Leave Decision.  In essence, the Board found the applicant to be an untruthful witness who had fabricated his claim.  The Board also noted the delay of the applicant in applying for protection.  In particular, the Board did not accept the applicant’s claim that he received two properties from his grandfather; that Yusuf threatened him in the four incidents; that he feared returning to India for the reasons he claimed or for any other reasons; and that he would be harmed if he returns to India.  As the Board did not accept that Yusuf had threatened or harmed the applicant, it did not accept that Yusuf would try to find the applicant or was so connected in politics that it would be easy for him to find the applicant.  The Board thus found that the applicant’s claim failed on all applicable grounds.

THE JUDGE’S DECISION

7.  As the applicant did not request an oral hearing, the Judge determined his application on paper.  By the Leave Decision, the Judge refused his application for leave to apply for judicial review.  His reasons were stated at [25] ‑ [26] of the Leave Decision:

“25. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is challenging the Board’s finding of fact that he would not face any real harm or risk if returned to India, which is impermissible except for error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

26. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Board found the Applicant to be an untruthful witness who had fabricated his case in an attempt to enhance his claim for protection and to extend his stay in Hong Kong.  It rejected his account because of the numerous and significant inconsistencies in his evidence. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the three remaining grounds under the USM.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.”

8.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14‑day period.

9.  On 11 November 2022, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was almost two months late with his intended appeal.

10.  On 2 February 2023, the Judge refused the applicant’s application.  The Judge considered a delay of almost two months as very substantial, for which the applicant did not provide any good reason for his delay.  The Judge further held that as the applicant advanced no arguable ground of appeal, there was no prospect of success in his intended appeal.

THIS APPLICATION

11.  By a summons and a supporting affirmation lodged on 27 March 2023 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, the applicant did not give any reason for his delay or any ground of appeal.  In his supporting affirmation, the applicant alleged that he would still face life threat upon refoulement.

12.  Pursuant to the directions of the Registrar of Civil Appeals dated 27 March 2023, the applicant lodged his written submissions on 4 April 2023.  In those submissions, the applicant cited some definitions on asylum and that there was a problem for domestic violence survivors.  He also alleged that his life would be in great peril if he returned to India.  He further alleged that the Board failed to make sufficient enquiries before finalising its decision.  He further cited various case authorities and legal principles on procedural fairness and Wednesbury unreasonableness but failed to explain how they were relevant to his case.  He then purported to raise nine grounds of judicial review on error of law, procedural impropriety, irrationality and unfairness against the Board’s Decision.  Those are however all vague and general grounds with no specific particulars as to how each applies to his case.

DISCUSSION

13.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

15.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

16.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

17.  The applicant’s delay of almost two month is substantial and inordinate.  He did not provide any reason, let alone good reason, for his delay.

18.  More importantly, there is no merit in the applicant’s intended appeal.  It is noted that all the allegations raised in his written submissions are new grounds not raised before the Judge.  It is trite that the applicant should not be permitted to raise new grounds for the first time in the Court of Appeal.  See: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  There is also no reason provided by the applicant as to why those grounds were not raised before.  In any event, those grounds are all vague and bare allegations and the applicant plainly fails to demonstrate how they are relevant to his case.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. More importantly, those grounds are directed at the Board’s Decision.  The applicant did not identify with specific particulars how the Judge erred in the Leave Decision. Accordingly, we will not entertain those new submissions advanced by the applicant.  They are not proper grounds of appeal.  We see no reason to interfere with the Leave Decision.

19.  There is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

20.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 27 March 2023 is dismissed.