RE NAWAZ REHMAT

CAMP 251/2020

[2021] HKCA 1035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 251 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 798 OF 2018)

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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 the decision dated 28 July 2020 (“the Decision”), Deputy High Court Judge C P Pang (“the Judge”)  refused to grant the applicant leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 27 April 2018 and dismissed the leave application.  In the Board’s decision, it upheld the decision of the Director of Immigration (“the Director”)  dated 13 July 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant lodged a summons on 3 September 2020 seeking an extension of time to appeal against the Decision.  By his decision of 17 December 2020 (“the Leave Decision”), the Judge, having considered the length of delay, reason for the delay and underlying merits of the application, dismissed the applicant’s summons on the basis that it would not be in the interest of justice to grant an extension of time in this case.

3.  By a summons dated 22 December 2020, the applicant renewed his application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 8 February 2021, the applicant lodged his written submissions dated 22 January 2021 on 22 February 2021. 

4.  Under Order 59, rule 14A(1)  of the Rules of the High Court (Cap. 4A), this Court may determine an application for an extension of time to appeal without an oral hearing.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a Pakistani national. He arrived in Hong Kong on 8 April 2015 illegally through China and he was arrested by police on the same day.  He was then referred to the Immigration Department for investigation.  He lodged his non-refoulement claim by way of written representation on 10 April 2015 on the basis that if he were to return to Pakistan, he would be harmed or even killed by his father’s cousins, Hussain and Ashraf over a land dispute.  The factual background of this case was succinctly set out by the Judge at [3] of the Form CALL-1.[1]

6.  By the Notice of Decision dated 13 July 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].

7.  The applicant appealed the Director’s decision to the Board and an oral hearing was fixed for 22 March 2018.  By its decision dated 27 April 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons and analysis stated in [83] to [133] of its decision, the Board did not find the applicant’s evidence credible and concluded that his story was not genuine. Having considered the totality of the evidence, the Board rejected substantially all the applicant’s factual basis including the suspected murder of his parents by his two uncles Hussain and Ashraf in 2012 and the applicant had been hit by a car that belonged to his two uncles in 2014.  For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds.

The Judge’s decision

8.  On 7 May 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  The applicant did not provide any grounds for his intended challenge save for saying that the Immigration Department disregarded his dangerous situation.

9.  The applicant did not request for an oral hearing and the application was disposed on paper.  The Judge, after summarizing the background of the case, as well as the decisions of the Director and the Board, gave the following reasons at [11] – [18] for his refusal to grant leave :

“Discussion

11. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. 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 and COI materials, 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.

12. As the Director’s decision has been superseded by the Board’s decision, it is not amenable to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.

13. In the present case, the Board in fact rejected the applicant’s appeal/petition on its adverse findings on credibility of the applicant and that it rejected the accounts of primary facts based on the major inconsistencies and contradictions in the applicant’s evidence. On the factual findings, it concluded that the applicant would not be at any real risk of harm or ill-treatment.

14. As mentioned, assessment of evidence/ primary facts and the risk of harm are within the province of the Board (and the Director), this Court will not interfere with the decisions unless there is a public law ground for the Court to do so.

15. In the present case, the Board with the benefits of hearing the applicant’s oral evidence rejected the non-refoulement claim essentially on its adverse finding on the applicant’s credibility for the thorough and detailed analysis and reasoning set out in its decision. It also found that state protection is available and relocation is viable. I do not find any reasonably arguable basis to challenge the findings of the Board.

16. It is also noted that the Board 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 the case appropriately. There cannot be any criticism of its determination which is eminently reasonable.

17. The ground raised by the applicant is general and vague assertion, without any particulars as to how the Board was unfair or unreasonable in the public law sense. He did not pinpoint any procedural irregularity, unfairness or unreasonableness.

18. 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 any failure to apply high standards of fairness.”

10.  The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4)  of the Rules of the High Court (Cap. 4A), expired on 11 August 2020.  By a summons filed on 3 September 2020, the applicant sought an extension of time to apply for leave to appeal against the Decision.  He was late by more than 3 weeks.

11.  In his summons and supporting affirmation, the applicant stated that he did not receive any letter from the court as he had changed his address.  He thought he needed not update the court of his address as he already informed the Immigration Department of the change.

12.  By the Leave Decision, the Judge refused to extend time for the applicant to appeal against the Decision.  At the hearing, the applicant explained that he had not received the decision as he had changed his address but he only informed the Immigration Department.  According to the court’s record, the court’s order and the Decision were properly served upon the address given by the applicant and the same had not been returned as unclaimed or undelivered.  In any event, the Judge took the view that it is the duty of a litigant to give the court an updated address to which correspondence or notice can come to the litigant’s attention in a timely manner and the consequences of any delay arising from failing to do so will fall upon the litigant.  The Judge was not satisfied there was a good reason for the delay.

13.  On the issue of merit, the applicant had not identified any grounds of appeal or errors in the court’s decision and none could be ascertained from the papers or at the hearing.  As such, the Judge refused the application for time extension, and dismissed the summons.

The renew application

14.  On 22 December 2020, the applicant filed a summons together with supporting affirmation to renew his application before this court in which he advanced the following:

“I would like to request that give me extension for notice of appeal. I am not satisfied from the decision of the judges as I mention that I don’t have knowledge of judicial review of Hong Kong. I am a uneducated person. So kindly me extension.”

15.  In his written submissions, he further added one more reason for his delay in seeking leave to appeal the Decision which was due to covid-19 pandemic and that he decided to wait until “everything is back to normal”.  He also advanced the following grounds of appeal:

(1)  The Board had unlawfully fettered its discretion by refusing his appeal on the ground that it did not satisfy the requirements.

(2)  The Board’s decision was unreasonable or irrational in the public law sense or were the result of procedural errors or unfairness.

(3)  The Board failed to apply the high standards of fairness owed to self-represented litigant that

(a)  The hearing bundle was in English without any giving him sufficient time to prepare for his appeal before the Board.

(b)  The Board had significantly relied on sources of news not officially recognized or were hearsay or outdated that resulted in groundless speculation that it would be safe for him to return to his home country.  It also failed to consider the concept of extended acquiescence and wrongly speculated that the Pakistani police wold protect its people.

(c)  Failing to provide legal assistance.

(d)  Failing to make sufficient enquiry and failing to advise the applicant to obtain medical report or other evidence to prove his case on his claim on BOR 2 risk.

(4)  The court wrongly held that it should not apply an intensive or rigorous standard of review.

(5)  The court failed to properly assess his claim on torture risk.

Applicable Legal Principles

16.  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 an 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.

17.  Even if the court does not accept that the applicant’s explanation for 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. 

18.  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). 

Discussion

19.  We take the view that the delay of more than 3 weeks in taking out the summons for an extension of time to appeal against the Decision cannot be said to be insignificant and the applicant’s explanation provided to the Judge that he did not receive the court order and the Decision was not a good reason for the delay.  His subsequently added in the written submissions to support the present application that he would like to wait until “everything is back to normal” from Covid 19 pandemic that caused the delay.  This is a new argument and the applicant did not explain why it was not mentioned before the Judge and in any event, this general excuse would not be accepted as a good reason for the delay. 

20.  Thus, the applicant is required to demonstrate that his intended appeal has real prospect of success, before an extension of time would be granted, see: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

21.  We therefore turn to the merit of the intended appeal.

22.  This Court would only examine the Decision against the grounds of appeal raised by the applicant and in our judgment, the grounds of appeal against the Judge is vague and general, without pinpointing any error of law or raising any discernible grounds for this Court to reverse the Decision. 

23.  In this case, the applicant’s case was rejected by the Board on the issue of credibility that his whole story was not genuine and therefore, it was not established that he would face any risk of harm upon his return to Pakistan.  It is open to the Board to reach its determination, which in our view, is fully justified and eminently reasonable.  We found no error of law or procedural unfairness or irregularities in it.

24.  We are also satisfied that the Judge had reviewed the Board’s decision carefully and we found nothing amiss in the Decision.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 22 December 2020 is dismissed accordingly.