RE FaROOQ UMAR

CAMP 448/2021

[2022] HKCA 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 448 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2119 OF 2018)

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J U D G M E N T

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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 To (“the Judge”)  dated 21 May 2021 dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and also lodged a written submission in support of his application.   

3.  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 applicant’s summons and affirmation, 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 the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  rejecting his non-refoulement claim.

5.  The applicant is a Pakistani national aged 31.  He entered Hong Kong illegally and surrendered to the Immigration Department on 11 June 2015.  On 22 October 2015, he made a non-refoulement claim based on fear of being harmed or killed by people from the political party, Muttahida Qaumi Movement (“MQM”), because he had political disputes with them. The details of the applicant’s claim were set out in the Director’s decision at [7].  We will not repeat them.  

6.  By his decision dated 17 October 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.  

7.  The Board heard the applicant’s appeal against the Director’s decision on 29 June 2018, during which the applicant, through an Urdu interpreter, gave evidence and answered questions from the Board.  By its decision dated 27 September 2018, the Board dismissed the appeal.  While the Board accepted, on the basis of country of origin information (“COI”), that MQM has considerable influence in Karachi and is involved in a range of illegal activities, including those claimed by the applicant, the Board did not accept that the applicant had ever had any involvement with the MQM or taken part in their extortion and target killing activities.  The Board found the applicant not a truthful witness, having regard to his inconsistent, problematic and evasive evidence, and concluded that he had manufactured the totality of his claims in an attempt to obtain non-refoulement protection.  The Board did not accept that the applicant would face risks of harm upon his return to his country and held that he failed to establish entitlement to non-refoulement protection on any of the applicable grounds.  

8.  On 4 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  In either the Form 86 or the supporting affirmation, the applicant did not provide any ground for seeking relief.  In response to the Court’s invitation, the applicant put in a written submission that contained 10 points of argument.   

9.  The Judge heard the application at an oral hearing held on 17 May 2021.  By a Form CALL-1 dated 21 May 2021[5], the Judge refused the application for leave to apply for judicial review.  The Judge gave thorough consideration to the arguments raised by the applicant and rejected them for the reasons he gave at [18] to [30].  The Judge found there was no error of law, procedural unfairness, unreasonableness or irrationality in the Board’s decision, and concluded that the intended judicial review had no reasonable prospect of success.  

10.  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 order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 4 June 2021.

11.  By a summons filed on 26 July 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge Lung dealt with the application on the papers and refused the application by a decision handed down on 3 September 2021 ([2021] HKCFI 2399). 

12.  On 8 October 2021, the applicant filed the present summons together with an affirmation to make a further application to this Court for extension of time to appeal. 

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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. 

14.  The applicant was late by more than seven weeks when he filed the 26 July 2021 summons.  The delay is not insubstantial.  Both in the application made to Deputy Judge Lung and the present application, the applicant explained in his affirmation that he did not know English and the court procedure, and was not aware of the deadline.  He has not, however, indicated what steps he had taken to find out the relevant procedures.  In the circumstances and given that the delay is significant, we do not find the applicant has satisfactorily explained his delay.    

15.  We turn next to consider the merit of the intended appeal.  In this regard, 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].

16.  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.

17.  In the present application, the applicant did not provide any ground in support of his intended appeal in either the summons or the affirmation. 

18.  In his written submission, the applicant put forward the following arguments:

(1)  The case was procedurally unfair due to the policy of disposing of non-refoulement claims as quickly as possible.  The discriminatory approach to non-refoulement claimants is unacceptable and detrimental to the spirit of the judicial system.

(2)  He has not been fully informed of his right or given an opportunity to be heard with proper assistance.  The Board’s decision was never read to him in his language, and this is procedural unfairness.

(3)  Without knowing thoroughly how his case was determined, it is not easy for him to appeal the decision.  There should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claims.

(4)  He was never provided with proper legal assistance.  Due to his limited resources, funding and language capability, it has been burdensome for him to appeal the decision.

19.  The thrust of the applicant’s arguments is that there is procedural unfairness due to the lack of language and legal assistance.  This complaint has been considered and addressed by the Judge.  In [19] to [22] of the Form CALL-1, the Judge rejected the applicant’s complaint that the Director and the Board had acted in a procedurally unfair manner, pointing out that the applicant could not provide supporting particulars and had further accepted that he was given full opportunity to address the Board.  The Judge considered that in view of the detailed account and analysis of the applicant’s evidence given in the Board’s decision, the applicant’s complaint that there were problems with the interpreter during the appeal hearing was inherently improbable.  The Judge was further of the view that in light of the Board’s full consideration and assessment of the applicant’s case, there is no basis for the complaint that he was disadvantaged by not being legally represented. 

20.  We agree with the Judge. In the present application, the applicant is essentially repeating some of the grounds argued in the application for leave to apply for judicial review but which were rejected by the Judge, without identifying any error in the Judge’s decision to reject them.  In particular, the Judge correctly pointed out that it is evident from the papers and submissions filed by the applicant in the Court that he had access to language assistance.  We are further in agreement with the Judge’s holding on the issue of legal representation at [26] of the Form CALL-1 that:

“In Re Zafar Muzzam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[11] nor the judgment of FB v. Director of Immigration[12] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. Taking a global view of the circumstances, the Applicant had the benefit of legal representation in presenting his case to the Director. He also had the services of a qualified interpretation at the oral hearing before the Board. Nothing amiss arose from the non-availability of legal representation before the Board or interpretation in preparing for the hearing. The Court found that the Applicant had failed to demonstrate any procedural irregularity in the proceedings before the Director and the Board, or any arguable basis to challenge the fairness of the process.”

21.  The arguments advanced by the applicant have no merits, and his intended appeal against the Judge’s refusal of leave to apply for judicial review has no prospect of success.  As such, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 8 October 2021.