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CAMP 417/2021
[2022] HKCA 249
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 417 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 1215/2018)
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Before: Hon Barma JA and Au JA in Court
Date of Judgment: 25 February 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 KW Lung (“the Judge”) dated 1 March 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 15 June 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 27 March 2017 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 28 November 2013 and was arrested by the police on 20 March 2014. The applicant thereafter lodged a torture claim on 22 March 2014.
3. The applicant’s claim was based on a fear of being harmed or killed by the family of one Uzair Ali due to a dispute arising from a traffic accident. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL-1 Form”)[1].
4. By a Notice of Decision dated 27 March 2017, 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 23 March 2018, the Board dismissed the appeal on 15 June 2018. The Board’s Decision covered all four grounds for non-refoulement protection. The Board concluded that there were discrepancies in the applicant’s evidence which rendered him an unreliable witness.
The Judge’s decision
6. The applicant filed a Form 86 on 28 June 2018 seeking to judicially review the Board’s Decision without setting out any grounds of review. In his supporting affirmation, he stated inter alia that “there are many irrelevant facts made by the [Board]”.
7. After summarizing the facts and background of the case and giving due consideration to the Board’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 [12] to [17] of the CALL-1 Form:
“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.
13. 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.’
14. His grounds in support of this application are without any evidence or specific in support of them. They do not assist his application.
15. 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.
16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.
CONCLUSION
17. 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. The applicant’s address as stated in his Form 86 was at Ping Fu Path, Kwai Chung (“the Kwai Chung 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 Kwai Chung Address on 1 March 2021. This letter was returned to the court on 17 March 2021, by reason that the address was incomplete.
9. The applicant took out a summons in the Court of First Instance on 26 March 2021 seeking an extension of time to appeal, in which his address was still stated to be the Kwai Chung Address. In his supporting affirmation filed on the same date, he stated that he did not receive any letter from the court.
10. A further letter was sent by the court to the applicant at the Kwai Chung Address on 1 April 2021, enclosing the CALL-1 Form, which informed the applicant that an appeal may be lodged by him within 14 days of that letter. This letter was not returned.
11. Meanwhile, the Immigration Department informed the court that an alternative address of the applicant was at Nathan Road, Tsim Sha Tsui, Kowloon (“TST Address”). A copy of the CALL-1 Form was forwarded to the TST Address by letter on 12 April 2021, which was also not returned.
12. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.
13. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 1 March 2021. Nor did he file any Notice of Appeal within 14 days of the court’s letter dated 1 April 2021 or the court’s letter dated 12 April 2021.
14. Instead, the applicant applied to the Judge for leave to appeal out of time by way of a summons filed on 26 March 2021. This application was dismissed by the Judge on 13 July 2021[6].
15. By a summons filed on 30 September 2021, the applicant renewed his application for an extension of time to appeal before this court. In the summons and his supporting affirmation, the applicant simply stated that he did not receive the decision of the court.
16. On 12 October 2021, the applicant lodged written submissions with this court amounting to 16 pages. On 12 October 2021, the Registrar of Civil Appeals directed that as the submissions exceeded 10 pages in length, they will not be considered by the court. The applicant was directed to file written submissions of appropriate length on or before 22 October 2021, failing which he shall be deemed to have abandoned his right to rely on written submissions.
17. The applicant did not file further written submissions as directed. Accordingly, this court shall consider his present application based on the available documents and materials but will not consider his excessively long submissions.
Discussion
18. 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.
19. Notwithstanding the return of the court’s letter sent to the applicant on 1 March 2021, the letter sent to him on 1 April 2021 (enclosing the Judge’s decision) was not returned. He is deemed to have had notice of the contents of that letter. In fact, the applicant himself exhibited the Judge’s decision to his affirmation filed in support of his extension of time application before the Judge.
20. The Registrar of the High Court by the letter dated 1 April 2021 permitted him to lodge his appeal within 14 days thereof, but the applicant did not do so. The applicant has proffered no explanation for his failure to lodge his intended appeal within this period.
21. In the circumstances, we do not accept the applicant’s explanation or reason for his delay in lodging his intended appeal.
22. We have nonetheless proceeded to consider the merits of the intended appeal.
23. The applicant did not, whether in the Form 86 or the accompanying affirmation, point to any error of law, procedural unfairness or irrationality in the Board Decision. The applicant did not condescend 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 was hopeless and rightly dismissed by the Judge.
24. 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. As this court has repeatedly stated, an appeal to it is not a fresh application for judicial review. It is essential for an intending appellant to put forward grounds of appeal which identify some error on the part of the Judge below. This has not been done here.
25. For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal. The summons filed on 30 September 2021 is accordingly dismissed.
| (Aarif Barma) |
(Thomas Au) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] [2021] HKCFI 485
[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 1652
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