RE RAZZAQ

CAMP 176/2019

[2021] HKCA 741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 176 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 831 OF 2017)

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J U D G M E N T

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The Court:

1.  This is the applicant’s application for extension of time for leave to appeal against the decision of Deputy High Court Judge Bruno Chan given on 22 March 2019 refusing to grant an extension of time for his application for leave 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 (“Board”) dated 10 March 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 5 February 2016 and 29 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan. He entered Hong Kong on 22 February 2014 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 24 February 2014.

3.  The applicant’s claim was based on threats from a man identified as NS who was influential and had personal disputes with the applicant.  The details of the applicant’s claim have been summarised by the judge at [1] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 5 February 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 29 December 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 12 January 2017, the Board dismissed the appeal on 10 March 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [69] of the Board’s Decision, the Board held that the core of the applicant’s account was unreasonably vague, materially incoherent and inconsistent and contradicted by reliable background information.

The Judge’s decision

7.  The applicant filed a form 86 on 1 November 2017 which contained no ground for seeking relief.  He only stated he could not file the Form 86 within the time limit because his legal aid application was unsuccessful.

8.  In his affirmation in support of the leave application dated 31 October 2017, the applicant deposed that:

“I declare that case has not been decided on merit. I have provided some documents which have not been made part of record like medical certificate. Even my final appeal was not considered on merit and it was dismissed without merit. I pray to re-open my case for making decision”

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to extend time for applying for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [19] of the CALL-1 Form:

“14. Here the last day for the applicant to apply for leave to review the Board’s decision fell on 10 June 2017 and hence he was more than four months late with his Form 86, for which he explained in a note written on a letter from the Director of Legal Aid attached to the Form that the delay was due to his waiting for his legal aid application being processed.

15. Whilst that letter shows that his legal aid application was rejected only on 18 October 2017 and that it appears that he did file his Form 86 quite promptly thereafter in less than two weeks on 31 October 2017, the question must be asked of when did he make his application for legal aid in the first place, as the Board’s decision came on 10 March 2017 and if he had made his application early or soon thereafter, it would be inconceivable to me that it would have taken more than six months for the Legal Aid Department to process such his application. In the absence of any further particulars from the applicant about his legal application, I have difficulty accepting that his explanation for the delay as it stands would constitute a good reason for extending time.

16. As for the merit of his intended application as one of the most significant matters to be taken into account in the consideration of what may constitute a good reason for extending time, I have even more difficulty in finding any from his supporting affirmation as noted above, while his complaint that his supporting documents including the medical certificate had not been considered as part of the record of his claim is plainly wrong, as evidently they had been taken into account in their consideration of his claim by both the Director in paragraphs 8 – 9 of his decision, and by the Board in further details in paragraphs 58 – 63 of its decision.

17. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers. In the absence any legal error or procedural unfairness or irrationality in their decisions being identified by an applicant, judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

18. In the premises and having proceeded to consider the decisions of both the Director and the Board 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.

19. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and as such there is no good reason for extending time to his leave application which is accordingly dismissed.”

Application for extension of time for leave to appeal

10.  Pursuant to Order 53, rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 29 April 2019, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 24 July 2019.

11.  By a summons dated 29 July 2019, the applicant sought leave to appeal against the judge’s decision to refuse leave to appeal on 24 July 2019.  In the summons, the applicant advanced the following grounds of appeal:

(1) The judge did not consider all the evidence put before him and he cherry-picked information;

(2) The judge did not refer to the affirmation dated 29 April 2019;

(3) The court should have provided language assistance to him so that he could identify the necessary evidence;

(4) The judge should have asked for evidence on the applicant’s recognizance paper;

(5) The applicant is not aware of the requirement to identify the proposed grounds of appeal he intended to rely on in the summons.  The judge should have asked him to provide these grounds either in writing or in an oral hearing; and

(6) The decision by the judge was unjust and unfair.

12.  In his skeleton submissions dated 15 August 2019, the applicant reiterated the grounds of appeal in the summons dated 29 July 2019.

Discussion

13.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

14.  We consider that it is not necessary for the applicant to seek leave to appeal against the decision by the judge to refuse leave to appeal and that the proper application for the applicant to make is a renewal before this court of his application for leave to appeal out of time against the judgment in the CALL-1 Form.  We have therefore treated the application in the summons dated 29 July 2019 as such.

15.  Although it is not strictly necessary for us to decide the correctness of the judge’s decision to refuse leave to appeal on 24 July 2019, we would make an observation on the applicant’s contention that the judge omitted an important aspect of his case, i.e. the importance of the recognizance paper.  In the affirmation dated 29 April 2019 (which the applicant mistakenly believed was made on 27 April 2019), the applicant explained how on 8 April 2019 he came to realize the CALL-1 Form had already been handed down and that the letter to him enclosing the CALL-1 Form might have been lost.  He explained that he was unsuccessful in his attempt to file an appeal on 10 April 2019 because he lost his recognizance paper and a new one was issued on 25 April 2019.  He lodged the summons on 29 April 2019.

16.  Although the judge made no reference to the delay caused by the reissuance of the recognizance paper, he was correct in holding that the 14-day period for bringing the intended appeal ended on 5 April 2019 (i.e. before the alleged discovery on 8 April 2019).  In our view, while the judge could have dealt with the reasons for delay in greater details, given the primary reason for refusing leave was the lack of a viable ground of appeal, there was no need for the judge to probe further into the delay caused by the reissuance of the recognizance paper.

17.  While the applicant advanced a number of grounds of appeal against the judge’s decision to refuse leave to appeal, he has not identified any error in the judge’s decision to refuse extension of time for leave for judicial review, despite the comment by the judge that the applicant had not clearly and properly identified any such error (at [5] of his decision to refuse leave to appeal on 24 July 2019).

18.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  We do not accept that the lack of legal representation at this stage of his claim is a valid excuse for the lack of properly drafted grounds of appeal.  This is because this court has repeatedly held that the high standard of fairness does not mean that a claimant for non-refoulement protection is entitled to legal representation at all stages of the claim.

19.  We also do not accept that the applicant suffered any real prejudice from the lack of language assistance.  The applicant admitted that someone translated the CALL-1 Form to him and we note that the applicant was able to make detailed and well-argued submissions on how the judge erred in his decision to refuse leave to appeal. 

20.  Lastly, the applicant did not identify which evidence he wished to adduce for the intended appeal or the significance of that evidence.  This ground is also without merit.

21.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 29 July 2019 is dismissed accordingly.

22.  We are also of the view that the application is totally without merit.  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.