RE HASSAN WASEEM

CAMP 313/2019

[2021] HKCA 35

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 313 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 467 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By the decision of 1 February 2019 (“the Decision”)[1], Deputy High Court Judge Josiah Lam (“DHCJ Lam”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 2 January 2018.  The Board upheld the decisions of the Director of Immigration (“the Director”) dated 29 February 2016 and 10 November 2016 rejecting the applicant’s non - refoulement claim.

2.  On 9 October 2019, the applicant took out a summons for an extension of time to appeal against the Decision.  On 17 December 2019, Deputy High Court Judge Bruno Chan (“DHCJ Chan”) refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3.  By a summons dated 19 December 2019, the applicant sought leave from this Court to appeal against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 23 December 2019, 14 January, 16 March and 11 May 2020, the applicant was directed to lodge his written submissions in support of his summons on or before 25 May 2020.  The applicant failed to lodge his written submissions as directed. 

5.  The Registrar further directed that unless the applicant lodged his written submissions by that time, he would be debarred from lodging any written submissions, and his application for extension of time to appeal shall be determined on the basis of the summons and the affirmation filed in support. 

6.  Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the supporting affirmation, 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 entered Hong Kong illegally on 14 May 2014 and was arrested by the police on the same day.  On 16 May 2014, he lodged a non-refoulement claim by way of written representation on the basis that if he were to return to Pakistan, he would be harmed or killed by gangsters of the Muttahida Qaumi Movement (“MQM”) group who tried to extort, but failed to get money from him.  The factual background was succinctly summarized by DHCJ Lam at the Decision at [2] – [10].

8.  By Notice of Decision of 29 February 2016 and Notice of Further Decision of 10 November 2016, the Director assessed the applicant’s claim on all applicable grounds and determined them against him. The Director’s decisions covered the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

9.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  After the hearing on 11 November 2016, the Board dismissed the appeal on 2 January 2018.  For the reasons and analysis stated in [29] to [53] of the Board’s decision, the Board found that even taking the applicant’s account of events, the MQM men only posed verbal threats to the applicant with an intention to extort protection money from him and he did not suffer any harm nor any injuries to his body, let alone severe injury or serious harm.  There was no evidence adduced by the applicant to show that the MQM men had any connection with the police or the government authorities nor the alleged threat was inflicted by or at the instigation of or with the consent or acquiescence of public official.  The Country of origin information (“COI”) suggested that state protection should be available.  The Board also found that the applicant, as an able-bodied young man with 14 odd years of working experience as a mechanic, should be able to relocate to other parts of Pakistan and make a living without undue hardship.  For the aforesaid reasons, the applicant had not made out a case for non-refoulement protection under any of the applicable grounds.

10.  On 22 March 2018, the applicant filed a Form 86 together with his supporting affirmation for leave to apply for judicial review of the Director’s and the Board’s decisions.   DHCJ Lam had rightly pointed out that following the well-founded legal principle by the Court of Appeal in Re Moshsin Ali[7], the decision of the Director’s decision is not susceptible to judicial review once an appeal to the Board is pursued by a non - refoulement claimant and therefore, the judge only dealt with the grounds against the Board as follows[8]:

(1)  Lack of legal representation after the Director’s decision dated 29 February 2016.

(2)  Lack of language assistance.

(3)  The Adjudicator allowed the Director to be excused from the Board’s hearing.

(4)  The Adjudicator ignored the COI related to the influence and atrocious activities of MQM.

The decisions below

11.  The application was heard on 25 July 2018.  By the Decision made on 1 February 2019, DHCJ Lam refused leave for the applicant to apply for judicial review after due consideration of the Director’s and Board’s decisions.  The reasons were set out at [32] to [40] of the Decision:

“32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

33. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.”

34. The Applicant complained he had no legal representation after the Director's decision dated 29 February 2016.

35. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

36. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

37. The Applicant complained the Adjudicator ignored country-of-origin information ("COI") related to the influence and atrocious activities of MQM.

38. The Adjudicator had a balanced consideration of relevant COI. He was satisfied there was reasonable state protection in Pakistan. His finding was not Wednesbury unreasonable.

39. The Applicant criticised the Adjudicator for allowing the Director to be excused from the Board hearing on 11 November 2016. The Applicant cannot show how the Director’s absence would prejudice his appeal.

40.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.”

12.  The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 15 February 2019.  On 9 October 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. 

13.  The summons was heard on 21 November 2019, and by the Leave Decision dated 17 December 2019, DHCJ Chan refused the application for leave to appeal out of time and dismissed the summons.  In the applicant’s case, the delay of almost seven months was considered very substantial, for which the applicant explained in his affirmation that initially he had wanted to appeal against the Decision, but as he was told on the phone by his wife that his enemies were no longer looking for him and therefore it would be safe for him to return to Pakistan.  Therefore, he did not proceed with his intended appeal until much later when he discovered that he had been misled by his wife about the situation back home, and that it would still not be safe for him to return home.  Hence he decided to proceed to appeal but by then he was out of time.   

14.  In the absence of any further details or particulars disclosed in his affirmation such as the time when he was first told by his wife that it would be safe to return home, or of his subsequent discovery that he had been misled about the situation in Pakistan and plus the fact that he was unable to explain on the said issues upon the invitation by the court, DHCJ Chan was not satisfied that there was any valid or good reason for the applicant’s substantial delay.  More importantly, the applicant failed to provide any ground of appeal, or any particulars of any error in the Decision other than a regurgitation of his complaints against the Director’s rejection of his claim. DHCJ Chan did not find any of the applicant’s complaint constitute viable grounds of appeal and refused to grant the applicant an extension of time to appeal the Decision.

The renewed application

15.  On 19 December 2019, the applicant filed a summons together with supporting affirmation seeking leave to appeal against the Leave Decision.  The applicant did not provide any grounds of appeal save for saying he did not agree with the decision made by DHCJ Chan. He also failed to lodge his written submissions as directed by the court.

Legal principles

16.  As pointed out by Lam VP in Farrukh Zaib v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office & other [2020] HKCA 408 at [21], whilst it is technically possible to appeal against a lower court’s decision refusing an extension of time for appealing, it is more appropriate to renew the application for extension of time before the Court of Appeal[9].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the Decision out of time.

17.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the merits of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

18.  Even if the court does not accept that the applicant’s explanation for the delay is reasonable, the court would still examine if he has merit in the intended appeal: see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

19.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

20.  In the present case, the applicant’s delay of almost seven months in filing the summons for his intended appeal was substantial.  The applicant’s explanation as mentioned in [13] of this judgment was not credible for his failure to provide any evidence or particulars to substantiate his case even upon the invitation by the court.  We are not satisfied that the applicant had provided any good reason for his delay. As such, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted, see Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

21.  We now turn to the merit of the intended appeal.

22.  The applicant did not provide any ground of appeal or any particular to pinpoint any error of law or procedural unfairness or irregularities in the decisions of DHCJ Lam and/or DHCJ Chan and his intended appeal is bound to fail.

23.  Further, upon our careful review of the Board’s decision, the applicant had failed to establish his case under all applicable grounds.  He did not sustain any harm or injury to his body even on his own account of event and his alleged fear and risk was a local one and private in nature with no evidence suggesting any state involvement.  We are satisfied that DHCJ Lam had reviewed the Board’s decision with vigorous examination and anxious scrutiny and we see no basis to intervene.

24.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 19 December 2019 is dismissed accordingly.

25.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.

[1] [2019] HKCFI 219.

[2] [2019] HKCFI 2909.

[3] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[6] This refers to the 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.

[7] [2018] HKCA 549.

[8] [26] – [28] of the Decision made by DHCJ Lam on 1 February 2019.

[9] See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].