RE SAMIULLAH

CAMP 294/2019

[2020] HKCA 596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 294 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1265 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 17 May 2019 (“the Decision”)[1], Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 27 April 2018.  In the Board’s decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 6 January 2017 rejecting the applicant’s non - refoulement claim.

2.  On 31 July 2019, the applicant took out a summons for an extension of time to appeal against the Decision.  On 14 October 2019, the Judge refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3.  By a summons dated 21 November 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 25 November and 12 December 2019, the applicant was directed to lodge his written submissions in support of his summons on or before 30 December 2019.  The applicant failed to lodge his written submissions as directed. 

5.  The Registrar had 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 14(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 first visited Hong Kong on 16 September 2001 on the strength of a Pakistani passport with another identity and applied for an extension of stay, claiming that he had been seeking refugee status from local United Nations High commissioner for Refugees (UNHCR).  He overstayed in Hong Kong since 26 January 2002 and was arrested by the police on 16 April 2003.  He withdrew his application to the UNHCR on 24 April 2003 and was removed to Pakistan on 23 May 2003 under a removal order.  On 5 January 2016, he entered into Hong Kong illegally again and was arrested by the police on the same day.  He lodged a non-refoulement claim on 20 January and 19 February 2016 by way of written representation. 

8.  His claim was made on the basis that if he were to return to Pakistan, he would be harmed or even killed by members of rival political party Pakistan Muslim League (N) (“PML(N)”) for refusing to join their party.  The factual background was succinctly summarized by the Judge at the Decision at [1] – [8].

9.  By Notice of Decision of 6 January 2017, the Director assessed the applicant’s claim on all applicable grounds and determined them against him.  The Director’s decision covered the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

10.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  After the hearing on 8 March 2018, the Board dismissed the appeal on 27 April 2018.  For the reasons and analysis stated in [12] to [20] of the Board’s decision, the Board found that the applicant’s case was exaggerated, inherently inconsistent and illogical.  The Board rejected the applicant’s case that false claims had been made against him by any political party or for any political reasons or that he was being pursued by the police, that the only problem he might have in Pakistan was his private dispute with his brother over some family land without any state or official involvement.  In the circumstances, reasonable state and police protection would be available to him.  Further, internal relocation would be a viable option to avoid his alleged fear in staying in his home village.  For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds. 

11.  On 4 July 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.  However, he did not provide any grounds for his intended challenge.

The Judge’s decisions

12.  The applicant did not request an oral hearing and the Judge considered his application on the papers.  By his Decision made on 17 May 2019, the Judge decided to refuse 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 [14] to [17] of the Decision:

“14. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or judicial unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the applicant’s case, the Board rejected his claim of fear of harm from the PML(N) people or for any political reasons based on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 12 – 20 of its decision and with the benefit of hearing him in evidence and answers to questions raised of his claim in his appeal hearing, and in the absence of any legal error or procedural unfairness being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16. Furthermore, the fact that it has been established by both the Director and the Board in their respective 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 HKC 526.

17. 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 their consideration and assessment of the applicant’s claim.”

13.  The 14-day period for the applicant to appeal the Decision of the Judge, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 31 May 2019.  On 31 July 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. 

14.  The summons was heard on 27 August 2019, and by the Leave Decision made on 14 October 2019, the Judge refused the application for leave to appeal out of time and dismissed the summons.  The Judge considered a delay of two months’ time was significant.  The applicant explained that he did not receive the Decision within the 14-day period for him to file his intended appeal, and hence he was not given a reasonable opportunity to present his case.  The Judge, after careful review of the court record, found that the Decision was in fact sent by ordinary post to the applicant’s last reported address on the same day of the Decision, and that it had not been returned undelivered.  Hence, in the absence of any further particulars or documentary evidence from the applicant such as the envelope with a posting date showing that it was in fact sent on a much later date, the Judge was not convinced that the Decision was delivered late as alleged and thus, the applicant’s explanation was rejected.

15.  More importantly, the applicant did not provide any draft/proposed grounds of appeal, or any particulars of any error in the Decision, or why it might be argued that the decision was unfair or unreasonable. As such, the Judge did not see any prospect of success in his intended appeal. 

The present application

16.  On 21 November 2019, the applicant filed a summons together with supporting affirmation seeking leave to appeal against the Leave Decision out of time. Under Order 59 rule 2B(3) of the Rules of the High Court (Cap. 4A), the applicant may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of the refusal of leave by the judge, which expired on 28 October 2019.  The applicant was late for 25 days in taking out the present summons.  Under Order 59 rule 2B(6) of the Rules of the High Court (Cap. 4A), this Court may extend the time for making the application for leave to appeal.

Legal principles

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 prospect 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 delay is reasonable, the court would 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 summons and the supporting affirmation, the applicant said that he did not receive the court documents within 14 days from the date of the Leave Decision of 14 October 2019 due to those documents lost in post.  The applicant claimed that there was nothing he could do to prevent the court documents being lost in the post and he could only get those documents after searching the court file.  The court record showed that the Leave Decision was in fact sent by ordinary post to his last reported address on 14 October 2019, and that it had not been returned through undelivered post, hence we do not accept the applicant’s explanation as good and valid reason for the delay.

21.  Regarding the applicant’s delay of two months in filing his appeal against the Decision, we agree with the Judge that such delay was substantial and that the applicant failed to provide any valid reason for his delay.  

22.  Where the delay was both inordinate and inexcusable, 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.

23.  We therefore turn to the merit of the intended appeal.

24.  The applicant’s case was rejected by the Board on the issue of credibility.  The Board held that the applicant was at most facing a private family dispute over some family land with his brother and the applicant had exaggerated his case to boost his non-refoulement claim.  It was within the Board’s province to make these findings.  We see no proper basis to interfere.

25.  Further, the applicant did not provide any draft or proposed grounds of appeal in his summons and supporting affirmation to challenge the Judge’s decisions.  His intended appeal is bound to fail.  In any event, we have carefully reviewed the Decision and are satisfied that the Judge had examined the Board’s decision with vigorous examination and anxious scrutiny and that the applicant’s intended application for judicial review was rightly refused.

26.  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 21 November 2019 is dismissed accordingly.

27.  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 1181

[2] [2019] HKCFI 2427

[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.