RE SHAN MUHAMMAD

CAMP 89/2021

[2021] HKCA 1727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 89 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 350 OF 2017)

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J U D G M E N T

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

Introduction

1.  On 15 December 2017, by way of a decision (“DHCJ Woodcock’s Decision”)  set out in Form CALL-1, Deputy High Court Judge Woodcock (“DHCJ Woodcock”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 21 June 2017 (“the Board’s Decision”), as well as the decisions of the Director of Immigration (“the Director”)  respectively dated 28 November 2016 (“the Director’s First Decision”)  and 20 March 2017 (“the Director’s Second Decision”).

2.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

3.  The 14-day time period for the applicant to appeal the DHCJ Woodcock’s Decision provided under Order 53, rule 3(4)  of the Rules of the High Court (Cap 4A)  (“the RHC”)  expired on 29 December 2017.  On 20 August 2020, the applicant sought extension of time to appeal the DHCJ Woodcock’s Decision.  He was more than two years out of time.

4.  On 21 January 2021, the Deputy High Court Judge Bruno Chan (“DHCJ Chan”)  refused to grant extension of time to the applicant (“the Extension of Time Decision”).

5.  By a summons dated 18 March 2021 (“the CA Summons”), the applicant seeks to challenge the Extension of Time Decision in the Court of Appeal.  The proper application for the applicant to make is to renew such application before this Court instead of appealing against the refusal to grant extension of time: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104.  We shall therefore treat the CA Summons as a renewed application for extension of time to appeal.

6.  Under Order 59, rule 14A(1)  of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  Directions were given by the Registrar of Civil Appeals to the applicant on 11 May 2021 concerning the conduct of the application.  Paragraph 6 of those directions also stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the paper.  After considering the documents filed, 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 came to Hong Kong illegally on 12 December 2011 and was arrested by the police on 12 December 2011.  He lodged a torture claim on 15 December 2011 which was rejected on 1 March 2012.  On 3 March 2014, he lodged a non-refoulement claim.  His claim was assessed on all applicable grounds other than torture risk[1].

8.  The applicant’s personal background and his claim were summarized at paragraph 10 of the Director’s First Decision and paragraphs 19 - 25 of the Board’s Decision.

9.  Briefly stated, the applicant claimed that he would be harmed or killed by his business partner, Qayumif he was returned to Pakistan.  The applicant claimed to have run a textile manufactory factory with Qayum.  One day, the applicant, a Sunni Muslim, got into a fight with Qayum, a Shia Muslim, over religious issues. Qayum was irritated and he slapped the applicant on the face.  Later, Qayum gathered around 10 to 15 Shia friends and committed arson in the factory, leading to the death of two employees.  Thereafter, Qayum threatened the applicant for compensation for the damaged factory.  Out of fear, the applicant fled to Hong Kong for protection.

The Director’s Decisions and the Board’s Decision

10.  By way of the Director’s First Decision, the Director assessed and dismissed the applicant’s non-refoulement claims on the BOR3 risk[2] and persecution risk[3] while the Director’s Second Decision covered the assessment of the applicant’s claim on BOR2 risk[4].

11.  The applicant lodged an appeal to the Board against the Director’s Decisions.  An oral hearing was held on 15 March 2017, in which the applicant was assisted by an interpreter and he answered inquiries from the Board.  After hearing the applicant, and considering his evidence in the non-refoulement claim form, the Board found that the applicant was not a truthful witness.  It found that the applicant provided inconsistent claims for protection.  In his initial claim, the applicant claimed that he would be harmed or killed by his parental uncle for a land dispute whilst before the Board he claimed to have business and religious disputes with Qayum.  Such inconsistency greatly undermined the applicant’s claim and credibility (paragraphs 26 - 30 of the Board’s Decision).  Further, the Board refused to accept the applicant’s version of events in relation to Qayum and was of the view that the applicant would not face any risk of harm if he was returned to Pakistan (paragraphs 32 - 44 of the Board’s Decision).  As a result, the Board dismissed his appeal.

The Deputy Judge’s Decision

12.  On 3 July 2017, by way of a Form 86, the applicant sought leave to challenge the Board’s Decision and the Director’s Decisions.  The grounds of review in his supporting affirmation were that (a)  there was a lack of legal representation; and (b)  there was a lack of language assistance.

13.  After hearing the applicant and considering the documents, the Deputy Judge refused to grant leave to him to apply for judicial review.  The Deputy Judge set out the grounds of review and her reasons for refusal at [16] - [21] of the Deputy Judge’s Decision:

“16. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out.

17. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk. The court was reminded that a ‘high standard of fairness’ should be maintained but legal representation for this applicant only extended to the claim process before the Director. Once the Director dismissed his claim the applicant received no further free legal advice or assistance. The applicant submits this is a ‘violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice’.

18. It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held ‘high standards of fairness’ must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187, para 44. That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim. That approach for the adjudicator is paramount and cannot be stressed enough. However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The duty lawyer scheme will represent applicants in their appeal if they are of the view there is merit in their cases. The applicant agreed in the oral hearing that he did approach the duty lawyer scheme but they refused to continue to represent him in his appeal; he says they did not give him a reason. I know for a fact their assessment is on a case-by-case basis. If they refused it was because they felt his appeal had no merit. This ground is not reasonably arguable.

19. The second ground is a complaint that the letter from the Immigration Department inviting the applicant to provide further information in relation to a BOR 2 risk claim was in English and was too technical for him. He submits the government should provide an interpreter to the applicant as and when required, I quote from paragraph 9 of the affirmation ‘so as to avoid jeopardising my rights’. He says he was unable to reply to the letter on time. He provides no further particulars; it was a bare assertion. I know from the Director’s Notice of Further Decision that the applicant did not provide further information to the Director as invited. I can find no complaint on this ground made to the adjudicator during the appeal or in his grounds of appeal. During the hearing of 17 October 2017 I asked if he was unable to reply in time because the letter was in English and he said yes and because he was being interviewed at the time and was also sick so he did not pay much attention to the letter. This ground is not reasonably arguable.

20. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

21. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

Application for extension of time

14.  On 20 August 2020, the applicant took out a summons to seek extension of time to appeal DHCJ Woodcock’s Decision.  By way of the Extension of Time Decision, DHCJ Chan dismissed the applicant’s application on the basis that he failed to provide any good reason for the delay and that his intended appeal had no prospect of success.  Thus, DHCJ Chan concluded that it would be futile to extend time.

Renewed application for extension of time to this Court

15.  In the CA Summons and his supporting affirmation, the applicant merely stated that he did not receive the decision in time.  In his written submissions of 17 June 2021, the applicant only repeated his personal background and his claim.  He also complained that the Board did not give him enough time to elaborate on his problems; that the interpreter only wanted to finish his hearing as soon as possible and that the Board’s questions were not neutral.  However, none of these complaints were raised before DHCJ Woodcock nor are these complaints against DHCJ Woodcock’s Decision.

Legal principles

16.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted.

17.  Even if the court accepts that the applicant’s explanation for delay is reasonable, an applicant still has to show that the appeal has a reasonable prospect of success before extension of time will be considered.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

18.  In this respect, 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 principles can be summarised 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 the 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)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new arguments, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  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 decision of 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 RHC.

Discussion

19.  The applicant’s delay of more than two years is very substantial in the context of a statutory time limit of 14 days.  The applicant failed to provide any cogent explanation for the delay.  His explanation that he did not receive the decisions is hopelessly unacceptable, which is in any event without evidential support, for such a lengthy delay.  Further, as mentioned at [15] above, the applicant simply failed to advance any grounds with particularities pointing out any errors in DHCJ Woodcock’s Decision.  In any event, these grounds are new and will not be entertained by this Court: Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

20.  There are thus no viable grounds of appeal, and no merits in the intended appeal.  It would be futile to extend time.  We therefore dismiss the CA Summons.