RE AYUB NAVEED

CAMP 194/2018

[2019] HKCA 479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 194 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 540 of 2017)

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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 leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 15 June 2018 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 29 November 2018.

2.  The applicant had 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 summons, the affirmation and the 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”) dated 23 June 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 12 February 2016 and 28 February 2017 rejecting his non-refoulement claim.

5.  The applicant’s claim was set out in detail in the decisions of the Director and the Board, and was summarized by the Judge at [1] to [4] of the Form CALL-1 dated 15 June 2018, [2018] HKCFI 1317.

6.  Briefly stated, the applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the police on 3 December 2013.  On 7 December 2013, he lodged a non-refoulement claim based on his fear of being harmed or killed by his cousin arising of a land dispute.

7.  By his two decisions, the Director rejected the applicant’s claim on all applicable grounds.  The first decision covered the torture risk[1], the BOR 3 risk[2], and the persecution risk[3] grounds, and the further decision dealt with the BOR 2 risk[4] ground.

8.  The applicant’s appeal to the Board was heard on 8 March and 8 June 2017, during which the applicant declined to provide further evidence or answered the questions put to him by the Board.  For the reasons set out at [20] to [52] of its decision dated 23 June 2017, the Board dismissed the appeal.  In gist, the Board found the applicant’s case unreliable and did not feel able to attach any weight to his claim.  The Board concluded that the applicant failed to make out a case under any of the applicable grounds.

9.  On 22 August 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  After considering the papers, the Judge refused to grant him leave to apply for judicial review on 15 June 2018. 

10.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 29 June 2018.  On 13 August 2018, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The Judge heard the application on 31 October 2018.  By his decision dated 29 November 2018, the Judge dismissed the application.  On 12 December 2018, the applicant filed a summons and an affirmation in this Court to renew his application for leave to appeal out of time.

11.  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 success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

12.  By the time the applicant filed the summons in the lower court for leave to appeal out of time, he was about six weeks late.  The applicant explained that he was unaware of the 14-day time limit and did not know what to do as he had limited understanding of the day-to-day affairs.  Although the delay was not insubstantial, it was not very serious.  We are prepared to accept the applicant’s explanation.

13.  We turn next to consider the prospect of the intended appeal, which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for appeal (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125, Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v Director of Immigration (unreported) HCMP 881/2017, Re Gurung Min Bahadur [2018] HKCA 226).   

14.  The applicant did not set out any ground for seeking relief in the Form 86 and affirmation in support.  He merely stated this in his affirmation:

“I am not satisfied with the decision of Director of Immigration. I request you for judicial review. My life not safe in my motherland. Please see details with attached documents Exhibit page (1) to (23) total 23 pages. Please consider my case.”

The exhibit attached to the affirmation is a copy of the Board’s decision.

15.  In [11] and [12] of the Form CALL-1, the Judge gave his reasons for refusing to grant leave to apply for judicial review as follows:

“11. As noted by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the Director or adjudicator’s decision in dismissing the claims, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the decision-makers, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.

12.  Here the applicant does not even say that the Director or the Board has erred in their decisions.  Nevertheless, having proceeded to consider their decisions with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.”

16.  In the summonses and affirmations he filed in the Court below and in this Court, the applicant had not provided any grounds for his intended appeal.  In the written submission lodged in support of the present application, the applicant advanced the following arguments:

(1)   There was procedural unfairness in that he did not have legal assistance and language assistance, such that the help he received was inadequate or limited and it was not easy for him to obtain information about the non-refoulement claim process.  As he did not always have professional help, the advice he received could be conflicting and confusing.

(2)   The Judge found no error of law in the Board’s decision, saying particularly that it had fully analysed the country of origin information (“COI”).  However, the Board did not take a balanced view of the COI and only drew inferences adverse to his case.  

17.  In an appeal against refusal to grant leave for judicial review, the focus of the Court of Appeal is to examine the decision of the first instance judge in light of the grounds and materials before him.  The court will not generally permit an applicant to advance new grounds for judicial review or arguments that were not raised in the Court of First Instance.  This is particularly the case when the new grounds or arguments are fact-sensitive.  Otherwise, an applicant will be able to disregard the stringent time limit in Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A.

18.  None of the arguments raised in the applicant’s written submission had been argued before the Judge in the application for leave to apply for judicial review.  The mere fact that the applicant did not have legal representation or advice will not amount to good reason to permit him to advance these arguments for the first time in the intended appeal.

19.  In any event, the arguments have no merit.  This Court has repeatedly stated that a non-refoulement claimant does not have an absolute right to legal representation at all stages of the proceedings.  The applicant had been assisted by interpreters and lawyers in putting forward his claim before the Director.  The Duty Lawyer Scheme will continue to provide legal assistance and representation on a case-by-case basis, having regard to, among other things, the merits of the claim in question.  Further, the applicant has not provided any particulars for his complaint about the Board’s reliance and use of COI. More importantly, given that the Board did not find the applicant’s case reliable, this complaint on the use of COI has no relevance.    

20.  For the above reasons, the intended appeal has no prospect of success.  This being the case, it would be futile to give leave to appeal out of time.  Accordingly, we refuse the application and dismiss the applicant’s summons.

21.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.