RE HUSSAIN MANSOOR

CAMP 39/2019

[2019] HKCA 861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 39 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 784 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By a decision dated 3 August 2018 (“the Decision”), Campbell-Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 30 November 2016 and the decision of the Torture Claims Appeal Board (“the Board”) dated 6 October 2017. 

2.  On 1 March 2019, the Judge refused to grant an extension of time to the applicant to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews the application for an extension of time to appeal against the Decision to this Court by way of a summons dated 11 March 2019.  Pursuant to the directions of the Registrar of Civil Appeals (“the Registrar”) given on 13 March 2019, the applicant lodged his written submissions on 29 March 2019.  The Registrar further directed that it is for this Court to decide whether to determine the application on paper.  We consider it appropriate to determine this application on paper and we do so accordingly.

Background

4.  The applicant is an Indian national.  He came to Hong Kong as a visitor on 28 December 2013 and was permitted to stay until 3 January 2014.  He did not depart and has overstayed since 4 January 2014.  He surrendered to the police on 7 January 2014 and was transferred to the Immigration Department the next day.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 10 January 2014.  The applicant’s claim was based on his fear that if he were to return to India, he would be harmed or even killed by people belonged to All India Anna Dravida Munnetra Kazhagam (“AIADMK”). 

5.  By a Notice of Decision dated 30 November 2016, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk, the BOR 3 risk, the persecution risk, and the torture risk. 

6. The applicant appealed to the Board. After a hearing on 31 May 2017, the Board dismissed the appeal on 6 October 2017 (“the Board’s Decision”). The Board found that the applicant did not receive any real threats from AIADMK and that he was not at risk of harm for being a Muslim in his home town. Further, internal relocation is a viable option as the alleged risk is a localised one. The Board found that the applicant’s claims for non-refoulement protection were not made out on any applicable ground. 

The Judge’s decision

7.  On 19 October 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions but he did not provide any grounds of review.  In his supporting affirmation, he mentioned that the Director and the Board made their decisions depending on Indian authorities and web reports and failed to investigate his case thoroughly.

8.  On 3 August 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge gave the following reasons at [11] to [12] for her refusal to grant leave:

“Conclusion

11. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully. The Applicant’s case was weak in the extreme with no merit whatsoever. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

9.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 17 August 2018).  By the summons filed on 26 February 2019, he sought an extension of time for him appeal against the Decision.  In his supporting affirmation, he explained that he did not receive the court order in respect of the Decision and that he had not been provided with an oral hearing for his judicial review.  By the Leave Decision, the Judge refused to grant an extension of time on the basis that: (i) the applicant was significantly out of time; (ii) the reason for delay was unacceptable and implausible; and (iii) the applicant’s case was unmeritorious for the reasons set out in [11] and [12] of the Decision and the applicant failed to advance any grounds of appeal.

The Renew Application

10.  By the summons dated 11 March 2019, the applicant renewed the matter before us.  The applicant did not advance any grounds of appeal in the summons or in his supporting affirmation.  In his written submissions filed on 29 March 2019, he put forward the following grounds for his application:

(i)  the applicant was not provided with an oral hearing for his application for leave to apply for judicial review;

(ii)  the applicant feared for the safety of his life if he were to return to his home country.  It was unfortunate that his case was rejected despite he had submitted supporting documents to the court;

(iii)  it was unfair that the judges in the High Court did not hear him in person;

(iv)  there was a lack of language assistance which was detrimental to his case; 

(v)  the high standard of fairness required legal representation for assessment before the Director.  However, the Director considered his case on BOR 2 risk without referring his case to the Duty Lawyer Service as opposed to his claims under other applicable grounds;

(vi)  the further decision was determined by the Director without ensuring the applicant aware of his rights under his BOR 2 claim;

(vii)  the applicant had no understanding of the definition of BOR 2 risk, the legal process and the reasons for dismissal of his claims due to the lack of legal and language assistance and the problem exists up to date; and

(viii)  the acts of the authorities were highly discriminating and unfair to the applicant.

Legal Principles

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. 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 the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.  Even if the court does not accept that the applicant’s explanation for the delay is reasonable, the court should still examine if he has merit in the intended appeal, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

13.  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 salient principles are 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 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)  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, 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 Rules of the High Court (Cap. 4A).  In the applicant’s written submissions, he reiterated the background of his case and his fear of being harmed or killed if refouled to his home country.

Discussion

14.  We are of the view that the delay of 6 months in taking out the summons for an extension of time to appeal against the Decision was substantial.  We also agree with the Judge that the applicant had failed to provide any good reason to explain the delay.  

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection on the ground that the applicant failed to make out a case that he had suffered any serious harm or death threats in his home county that would warrant any non-refoulement protection.  As explained, the assessments of the risk of harm and internal relocation are within the province of the Board.  The court will not interfere with such assessments unless they are reversible on public law grounds.  The Judge, after rigorous examination and anxious scrutiny, did not find any public law grounds that warrant the court’s interference with the Board’s decision.

16.  Further, the grounds of complaints set out in the written submissions were canvassed by the Judge in the Decision and the Leave Decision and were duly rejected.  The complaints in relation to lack of legal and language assistance in handling the claim on BOR 2 risk did not tally with the fact that the Director considered the applicant’s claim on all applicable grounds including BOR 2 risk at the same and there was no further or separate decision on BOR 2 risk in this case.  As such, the Duty Lawyer should have assisted the applicant on his BOR 2 claim when he represented the applicant at that stage. The applicant’s complaints were baseless and not made out.

17.  For these reasons, we agree with the Judge that the applicant’s case is unmeritorious and we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal. 

Conclusion

18.  The summons dated 11 March 2019 is dismissed accordingly.

19.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.