RE WILLIAM SALEEM alias SAHAEL VICTOR alias SOHAIL VICTOR alias MARIK WILLIAM alias SAM WILLIAM

CAMP 145/2021

[2021] HKCA 1364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 145 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 673 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I. The appeal

1.  This is an application for an extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 9 September 2020, refusing leave to the applicant to apply for judicial review.

2.  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 applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

3.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 6 April 2018, dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 14 March 2017, rejecting his non-refoulement claim.

II.  Background

4.  The applicant is a national of Pakistan, aged 50.  Over the past 20 years, he repeatedly entered Hong Kong under various aliases and was then deported after overstaying his visa.  In 2006, he entered Hong Kong illegally from the Mainland, and in 2009 he was arrested by the Police for inflicting grievous bodily harm, for which he was subsequently convicted and sentenced to prison for five months.  Upon his release, he raised a torture claim with the Immigration Department on the basis that if he returned to Pakistan, he would be harmed or killed by the local Muslims for religious reasons.  His torture claim was rejected on 10 December 2010.

5.  After his torture claim was rejected, the applicant then raised a non-refoulement claim for protection on the same basis on 28 November 2016.  The applicant underwent two screening interviews.  The first was on 10 August 2010 (for his torture claim)  and the second on 14 January 2017 (for his non-refoulement claim).

6.  The details of the applicant’s claim were set out in the decisions of the Director and the Board and summarised by the Judge in the CALL-1 Form dated 9 September 2020 at [1] to [5].  We will not repeat them.   

III.  Director’s Decision

7.  By a decision dated 14 March 2017, the Director rejected the applicant’s claim on all the remaining applicable grounds other than torture risk, including BOR 3 risk, persecution risk and BOR 2 risk grounds.  The Director scrutinised the relevant facts and evidence in the applicant’s claim and assessed the level of risk of harm as low.  Further, the Director found, state or police protection would be available to the applicant if he resorted to it, and there were reasonable internal relocation alternatives available within Pakistan.

IV.  The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  The appeal hearing was held on 9 November 2017.  At the hearing, the applicant adopted as evidence his Questionnaire for Persons who have made Claims under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the record of his first screening interview on 10 August 2010, his Supplementary Claim Form dated 14 January 2017 and the record of his second screening interview on 6 February 2017.  The applicant also gave evidence at the appeal hearing and addressed the Board’s questions.

9.  By its decision dated 6 April 2018, the Board dismissed the appeal.  The Board found the applicant’s evidence of risk of harm from the ‘local Muslims’ vague and confused, the credibility of which was further undermined by his history of entering Hong Kong under various aliases and remaining illegally and his failure to make his (torture)  claim until his arrest in 2009.  The Board did not accept that the applicant would face any real and substantial risk of harm upon his return to Pakistan after all these years.  There was alternative internal relocation within Pakistan available to him without any risk of being located by those local Muslims.  His claim for non-refoulement protection, therefore, failed on all the applicable grounds.

V.  Intended judicial review

10.  On 18 April 2018, the applicant filed a Form 86 and an affirmation to apply for leave to judicially review the Board’s Decision.

11.  The Judge heard the Form 86 application.  The Judge refused the application and gave his reasons in [10] to [14] of the CALL-1 Form.  He held that in the absence of any error of law or procedural unfairness in the process before the Director or the Board or in their decisions being clearly and properly identified by the applicant, there was no reasonably arguable basis for his intended challenge.

VI.  Application for leave to appeal out of time to the Judge

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.

13.  The applicant should have filed his notice of appeal by 23 September 2020.

14.  By a summons filed on 25 November 2020, the applicant applied for an extension of time to appeal against the Judge’s decision.  The Judge refused the application and handed down his reasoned decision on 22 April 2021.

15.  In his decision, the Judge noted that at [5] the Court record showed that the CALL-1 Form was sent on the same day to the applicant’s last reported address, which is the same as stated in his present application, without being returned as undelivered post.  The Judge, therefore, held that the applicant had not provided a good reason for his delay.  The Judge then went on at [6] to assess the merits of the applicant’s intended appeal.  He held, in the absence of any error in the decision being clearly and adequately identified by the applicant, the applicant’s intended appeal has no prospect of success.

VII.  Application for leave to appeal out of time to the Court of Appeal

16.  On 16 May 2021, the applicant filed the present summons for an extension of time to appeal the Judge’s decision set out in the CALL-1 Form. 

17.  In considering whether to extend the 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. 

VIII.  Our view

18.  When the applicant filed his 25 November 2020 summons (for extension of time to appeal), this was two months late.  This is a substantial delay.

19.  In his affirmation explaining the delay, the applicant states that he never received the CALL-1 Form because it was ‘lost in the post’.  This explanation seems implausible, considering the Court record showing that the post was not returned as undelivered.  Furthermore, although not mentioned by the Judge, the Court record also shows that the Judge’s clerk contacted the applicant by telephone on 9 October 2020, telling him to pick up the CALL-1 Form from the Court.  The Court record further shows that the applicant indicated to the Judge’s clerk that he would pick up the CALL-Form on 12 October 2020, but did not until 21 October 2020.

20.  The applicant has made no attempt to explain why he did not pick up the CALL-1 Form from the Court earlier.

21.  While we accept that he is unrepresented and may not be familiar with court procedure, we do not consider the applicant has satisfactorily explained the delay in question.  In the circumstances, the applicant must show that his intended appeal has a real prospect of success.  

22.  In assessing the merit of the intended appeal, the Court adopts the legal principles comprehensively set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

23.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the Judge’s decision 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.  The Court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review.

24.  The applicant has not provided any ground for his intended appeal, any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation.

25.  The applicant’s written submission quoted passages from several cases, including ST v Director of Immigration [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223.  In his submissions, he argued that :

1)  a high standard of fairness applied since the decision has the effect of finally disposing of the applicant’s claim;

2)  the Board acted in a procedurally unfair manner as he failed to assess the credibility of the applicant properly; and

3)  the decision-maker is under a common law duty to act fairly and reasonably.

26.  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 summons or affirmation does not amount to proper grounds of appeal;

2)  Regarding the arguments in the written submission, they are general assertions, with no explanation as to how the legal principles relate to the applicant’s case; and

3)  The focus of an appeal before the Court of Appeal is the correctness of the lower court’s decision.  The applicant has not identified any error in the Judge’s decision.

27.  We agree with the Judge that the intended judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.

28.  For the above reasons, we dismiss the applicant’s summons filed on 16 May 2021.