RE MEHMOOD NASIR

CAMP 36/2019

[2019] HKCA 859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 36 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 904 OF 2017)

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J U D G M E N T

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

Introduction

1.  By a decision dated 27 April 2018 (“the Decision”), Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review.  The intended judicial review was against the decisions of the Director of Immigration (“the Director”) dated 24 September 2015 and 7 July 2017 and the decision of the Torture Claims Appeal Board (“the Board”) dated 27 October 2017. 

2.  On 23 January 2019, the Judge refused to grant an extension of time to the applicant to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews the application for an extension of time to appeal against the Decision to this Court by way of a summons dated 7 March 2019.  Pursuant to the directions of the Registrar of Civil Appeals given on 8 March 2019 and 28 March 2019, the applicant was ordered to file his written submissions on or before 16 April 2019.   The applicant had failed to file his written submissions as directed.  The Registrar further directed that it is for this Court to decide whether to determine the application on paper.  We consider it appropriate to determine this application on paper and we do so accordingly.

Background

4.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 4 July 2010 and was arrested by the police on 6 July 2010.  On 10 July 2010, the applicant lodged his non-refoulement protection claim.  The applicant’s case was based on his alleged fear that if he were to return to Pakistan, he would be harmed or even killed by his neighbour Khuram Shahzad (“KS”), who had a grudge against him because his family refused to sell their land to KS.

5.  By a Notice of Decision dated 24 September 2015, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 7 July 2017, the Director rejected the applicant’s claim on the BOR 2 risk.

6. The applicant appealed to the Board. After the hearings on 12 September 2016, 30 August 2017 and 20 October 2017, the Board dismissed the appeal on 27 October 2017 (“the Board’s Decision”). The Board accepted that KS had the opportunity to carry out death threats against the applicant as early as 2002 but did not up to 2010 when the applicant departed Pakistan, and given that the land had since been sold and there was no information since 2014 that KS still pursued the applicant, the Board assessed that the asserted risk of harm from KS was unlikely to materialize upon his return to Pakistan. Further, the availability of state protection and possible internal relocation would further lower the alleged risk. The Board found that the applicant’s claims for non-refoulement protection were not made out on any applicable ground. 

The Judge’s Decision

7.  On 17 November 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and Board’s decisions.  In his supporting affirmation filed on the same day, he advanced the following grounds for his intended challenge:

(1)  lack of legal representation in his appeal before the Board;

(2)  the Director had wrongfully exercised his case management power and improperly rely on objective Country of Origin Information (“COI”) by disregarding the inefficiency of state protection in Pakistan; and

(3)  lack of communication among the authorities and failing to ensure if the applicant had received the letter from the Director inviting him to submit additional facts for his claim on BOR 2 risk.

8.  On 27 April 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge gave the following reasons at [13] to [19] for his refusal to grant leave:

“ 13. For the first ground of the applicant that he was not provided any legal representation in his appeal to the Board, the Court of Appeal has held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: 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 Zafar Muazam [2018] HKCA 176.

14. The applicant already had the benefit of legal representation in presenting his case to the Director, and attended three oral hearings before the Board in person during which he was able to make submissions and answer questions put to him from the adjudicator for the Board without any difficulty. Even now in his leave application before me including an oral hearing during which again he was able to address the court regarding his claim, but still he did not state or outline what further information or argument that he wished to make but was unable to do so before the Board, and I do not see anything amiss arising from the non-availability of legal representation in the process before the Board.

15. As for the applicant’s complaint under ground (2) of the Director’s improper reliance of COI in disregarding the inefficiency of state protection in Pakistan, in the absence of any particulars or specifics from the applicant, it is not clear what improper reliance of COI that the applicant is accusing the Director of in his assessment of the efficiency of state protection, and an examination of those COI listed in his decision does not reveal anything amiss in the Director’s assessment, which include those which appear to corroborate the applicant’s concerns over police corruption, as well as those which show positive actions and on-going reforms taken by the Pakistani government to improve efficiency of both the state and the police to protect the public, and in his balancing exercise the Director was certainly entitled to arrive at the assessment as he did in his decision, and I do not see any merit in this complaint of the applicant.

16. As for ground (3), it seems that the applicant’s complaint is that he did not receive the letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk and was therefore unable to make any representation regarding that claim. Assuming that it is true that he never received that letter from the Director and only found out about it from the Director’s further decision of 7 July 2017 when he was already in the process of his appeal to the Board, and if indeed he had additional facts or representation to make regarding his claim under BOR 2 risk, he had had the opportunity to do so at the two additional oral hearings before the Board on 30 August 2017 and 20 October 2017 both of which he did attend and was able to address the Board.

17. In fact, as noted above even now in his leave application for judicial review including attending an oral hearing before me, the applicant did not state what additional facts or representation that he wished to submit regarding BOR 2 risk, and on the facts of his case I am satisfied that the assessment of BOR 2 risk relevant to his claim could effectively be made by the Board on the same materials presented on his behalf with the assistance of legal representation earlier to the Director, and I do not find any merit in this complaint of the applicant either.

18. 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, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

9.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 11 May 2018).  By the summons filed on 18 December 2018, he sought an extension of time to appeal against the Decision.  In his supporting affirmation, he explained that he was not aware of the rule for lodging the appeal within 14 days until he had sought legal advice.

10.  By the Leave Decision, the Judge refused to grant an extension of time on the basis that: (i) the delay of more than seven months was substantial (ii) ignorance of the time limit for lodging the appal could not be accepted as a valid reason and there was no explanation as to why the applicant did not seek legal advice much earlier; and (iii) the applicant failed to provide any grounds for his intended appeal and there was plainly no prospect of success in his application, see [4] and [5] of the Leave Decision.

The Renew Application

11.  By the summons dated 7 March 2019, the applicant renewed the matter before us.  In the summons, he said he did not receive the Decision because he was arrested and did not have access to court reference number of his case.  In his supporting affirmation, he further added that he was not represented by lawyer at that stage and he could not change the address within 14 days as he was arrested. 

Legal Principles

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  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.

13.  Even if the court does not accept that the applicant’s explanation for the  delay is reasonable, the court should 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. 

14.  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 in 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

15.  We are of the view that the delay of more than seven months in taking out the summons for an extension of time to appeal against the Decision was substantial.  We also agree with the Judge that the applicant had failed to provide any good reason to explain the delay.   

16.  Therefore, the applicant must satisfy us that his intended appeal has a real prospect of success before extension of time will be granted: see Re Ansar Muhammad [2018] HKCA 227.

17.  We are of firmly the view that the intended appeal of the applicant has no prospect of success.  The grounds for the judicial review as put before the Judge did not constitute valid grounds for challenging the Board’s decision.  The applicant also failed to advance any grounds of appeal in the summons and in his supporting affirmation to challenge the Judge’s decisions. 

18.  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. 

Conclusion

19.  The summons dated 7 March 2019 is dismissed accordingly.

20.  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.