RE HUSSAIN ADNAN

CAMP 174/2022

[2022] HKCA 1620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 174 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1525 OF 2021)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge P Li (“the Judge”) dated 15 February 2022[1] refusing to give him leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation to support his application.  He has not lodged any written submission despite directions given by the Registrar of Civil Appeals.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decisions of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 26.  He first came to Hong Kong on 2 June 2009 to join his father, and was given permission to remain as a dependant until 2 June 2016 through various extensions of his visa.  He overstayed and surrendered to the Immigration Department on 29 November 2016.  On 18 July 2018, he was granted dependant status afresh and permitted to stay until 14 March 2019.  He subsequently committed various criminal offences and was sentenced to imprisonment.  After his discharge from prison, he was transferred to Castle Peak Immigration Centre.  On 29 April 2019, he was released on recognizance. 

6.  By written representations dated 4 June and 24 July 2019, the applicant raised a non-refoulement claim, which he withdrew on 6 November 2019.  In December 2020, he was convicted of a criminal offence and sentenced to imprisonment.  Upon his discharge from prison in January 2021, he was transferred to Castle Peak Immigration Centre.  At his request made on 22 January, 2 and 17 February 2021 and 2 March 2021, the Director granted his request to re-open his claim.   

7.  The applicant’s non-refoulement claim is based on his fear of being harmed or killed by his two cousins due to a land dispute.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

8.  By his decision dated 15 April 2021, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

9.  The applicant appealed the Director’s decision to the Board.  The Board held an oral hearing on 2 and 17 September 2021, during which both the applicant and his father gave evidence and answered questions from the Board.  By its decision dated 11 October 2021, the Board dismissed the appeal.  While the Board accepted the evidence of the applicant’s father, it found the applicant’s evidence vague, inconsistent, incoherent and implausible and that he had lied about the basic facts of his claim.  The Board rejected the applicant’s account of events, finding that there was only a minor dispute between the applicant’s father and his cousins over a tiny piece of land, and the hostility was confined to verbal arguments and fist fights that did not attain a minimum level of severity or a substantial level of seriousness.  The Board found no real risk of serious harm to the applicant if he were to return to his country, and that internal relocation is a viable option, which would further lower or negate the level of risk that the applicant may face.  The Board concluded that the claim failed on all applicable grounds.

10.  On 1 November 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He did not put forward any specific grounds to support the application, other than stating that he was not satisfied with the Board’s decision and that his life would be in danger in his home country.         

11.  The Judge considered the application on paper.  By a Form CALL-1 dated 15 February 2022, he refused the application for the reasons set out in [15] to [18].  In summary, the Judge held that the Board was entitled to reject the applicant’s claim as untruthful, there was no error of law, irrationality or procedural unfairness in the Board’s decision, and the applicant’s intended judicial review has no prospect of success.  

12.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  In the applicant’s case, the 14-day period expired on 1 March 2022.

13.  By a summons filed on 12 April 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge To dealt with the application on paper, and by his decision handed down on 24 May 2022[6] refused the application. 

14.  On 30 May 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

15.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (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. 

16.  If discounting the period during which the High Court Registry was closed due to the public health situation (i.e. 9 March to 11 April 2022), the applicant was late by one week. He explained in his affirmation filed in the Court of First Instance and in this application that (1) due to the General Adjourned Period (“GAP”), he was unable to file his appeal, and (2) because he was detained in the Immigration Centre, and social and legal visits were suspended and mail delivery was delayed due to the public health situation, he was unable to arrange for the filing of the appeal papers. 

17.  We would point out that the time for appeal already expired before GAP commenced on 9 March 2022. However, we are prepared to accept that during late February 2022, due to the pandemic and the public health situation, there could be difficulties for the applicant, who was in custody, to contact his family or seek timely assistance with regard to going about his appeal.  We further note that his summons for time extension was filed on the first day when the High Court Registry re-opened after GAP.  In the circumstances, we are prepared to accept that the delay is excusable. 

18.  We turn next to consider the merits of the intended appeal.  We would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. Relevantly, 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.  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.

19.  Neither the summons filed in the Court below nor the present summons had set out grounds for the application.  They only asked that the applicant be “granted leave to advance a new sole ground of appeal”, but there was no elaboration on what the ground of appeal was. 

20.  In the affirmation in support of the present summons, the applicant complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.   

21.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  What was stated in the applicant’s affirmation are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair.  As the Form 86 did not request for an oral hearing, the Judge was fully entitled to deal with the application without holding an oral hearing. 

(2)  Assessment of credibility, risks of harm and country of origin conditions is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, found the applicant’s evidence not credible, and that internal relocation alternatives were available. The applicant has not advanced any challenge to the Board’s findings.  In the circumstances and in light of the Board’s rejection of his claim, there is no basis to support the applicant’s assertion of fear of danger to his life.

22.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success.           

23.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 30 May 2022.