RE KASHIF BUTT

CAMP 420/2021

[2022] HKCA 291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 420 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 994/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ CP Pang (“the Judge”)  dated 22 October 2020 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 14 February 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 11 November 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 3 July 2009 and was arrested by the police on 14 September 2009.  On 5 July 2010, he lodged a torture claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”).  The applicant’s CAT Claim was rejected by the Director on 25 February 2011, and his subsequent appeal by way of a Notice of Petition to the Petition Team of the Security Bureau was rejected on 7 April 2011.

3.  In May 2013, the applicant raised a non-refoulement claim under the Unified Screening Mechanism.

4.  The applicant’s claim was based on a fear of being harmed or killed by a person named Malik due to disputes relating to land and debt.  The details of the applicant’s claim have been summarised by the Judge at [4] of his decision (“the CALL-1 Form”)[1].

5.  By a Notice of Decision dated 11 November 2016, the Director decided against the applicant’s non-refoulement claim.  The Director’s Decision covered the persecution risk[2], the BOR 2 risk[3] and the BOR 3 risk[4].

6.  The applicant appealed to the Board.  After a hearing on 3 January 2018 (at which the applicant was absent), the Board dismissed the appeal on 14 February 2018.  The Board’s Decision covered all grounds for non-refoulement protection save the torture risk[5].  The Board concluded that the applicant’s evidence (in particular his claim of feared harm from Malik)  was untruthful.

The Judge’s decision

7.  The applicant filed a Form 86 on 1 June 2018, out of time, seeking to judicially review the Board’s Decision without setting out any grounds of review.  In his supporting affirmation, he repeated the dangers he allegedly would face upon return to Pakistan. 

8.  After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review (as well as an extension of time)  at [13] to [25] of the CALL-1 Form:

“13.  The relevant principles regarding non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

14.  When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

Application out of time

15.  It must be pointed out first that the applicant’s intended application for judicial review was made out of time. Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court will have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

16.  The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

17.  In this case, the 3-month time limit ended on 14 May 2018 and the application was late by about 2 weeks. The delay was not substantial but the applicant did not request extension of time or give explanation for the delay.  I cannot find any good reason for the undue delay.

Merits of the intended application

18.  Nevertheless, I will focus the merits of the intended judicial review.  Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

19.  In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it was not satisfied that his claims were truthful based on all the materials before it.  It could not be satisfied on the basis of the evidence that there are substantial or strong grounds for believing there is a real risk that he would be subject to torture or CIDTP.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

20.  As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

21.  The Form 86 and affirmation in support did not contain anything to demonstrate why the Board was unfair or unreasonable in the public law sense.  Repeating his claimed danger is not a viable ground.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

22.  Indeed, the applicant has been in Hong Kong since July 2009.  His conduct in Hong Kong by his delay in lodging the claim for protection after he entered Hong Kong unlawfully was inconsistent with someone in genuine fear for his life and safety.  It could be taken into account as damaging the applicant’s credibility.  The Board was entirely entitled to reject the applicant’s claims as credible.

23.  On the evidence of the case, there cannot be any criticism of the decisions of the Director and the Board which are entirely reasonable.

24.  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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

Disposition

25.  For the reasons given, there is no prospect of success in the applicant’s intended application.  There is no good reason to extend time for the application.  Accordingly, I refuse to grant leave to apply for judicial review.”

The present application for extension of time to appeal

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 22 October 2020.

10.  The applicant took out a summons in the Court of First Instance on 26 January 2021 seeking extension of time to appeal against the Judge’s decision.  In his supporting affirmation filed on the same date, he stated that he was detained by the Immigration Department and he had no knowledge of the Judge’s decision until he was informed of it by an immigration officer.

11.  The applicant’s application to appeal out of time was dismissed by DHCJ P Li on 15 September 2021[6].

12.  By a summons filed on 4 October 2021, the applicant renewed his application for an extension of time to appeal before this court.  In his supporting affirmation, the applicant stated that he did not receive the decision of the court on time.  The applicant also sought “leave to advance a new sole ground of appeal”, but did not provide any particulars of this.

13.  In breach of the directions made by the Registrar of Civil Appeals, the applicant lodged his written submissions (which were dated 19 January 2022)  late, on 20 January 2022.  

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

15.  In considering whether to extend time for appealing against a decision refusing 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.  See Jagg Singh [2020] HKCA 844 at [10].

16.  The applicant’s precise periods of detention by the Immigration Department are not clear.  He has never provided these dates or periods to this court or the court below.  As pointed out by DHCJ P Li in his decision at [8], the applicant has not mentioned when he was informed of the Judge’s decision by the Immigration Department.

17.  According to the record of the court, the decision of the Judge was sent to the last known address of the applicant on 22 October 2020, and there was no return of mail.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period in which he should have lodged the intended appeal.

18.  In the circumstances, we reject the applicant’s explanation or reason for his delay in lodging his intended appeal.

19.  We have nonetheless proceeded to consider the merits of the intended appeal.

20.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board Decision.  The applicant has not condescended to any particulars as to the basis on which the Board’s Decision could be said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  Given the applicant’s detention by the Immigration Department, and the possibility that his delay in lodging written submissions was so caused, we have, notwithstanding the applicant’s breach of this court’s directions, proceeded to consider his written submissions dated 19 January 2022.

23.  In his written submissions, the applicant referred to Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1)  that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2)  that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3)  that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.  However, there was no attempt by the applicant to explain, how these trite principles had been overlooked or contravened in the processing of his non-refoulement claim.

24.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal, and the summons filed on 4 October 2021 is accordingly dismissed.