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CAMP 458/2022, [2023] HKCA 1295
on appeal from [2022] HKCFI 2405
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 458 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 678/2019)
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| RE: |
MOHAMMED MUKHTAR |
Applicant |
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| Before: |
Hon Cheung JA and Barma JA in Court |
| Date of Judgment: |
15 November 2023 |
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J U D G M E N T
___________________
Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 17 August 2022 refusing to grant leave to the applicant to apply 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 (“the Board”) dated 25 February 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 25 June 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).
Background
2. The applicant is a national of India. He entered Hong Kong as a visitor on 16 January 2017, but he overstayed and surrendered to the Immigration Department on 1 February 2017. Thereafter, he lodged a non-refoulement claim on 14 March 2017.
3. The applicant’s claim was based on a fear of being killed or harmed by one Raju Singh (alias Sonu). The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of his decision (“the CALL-1 Form”)[1].
4. By the Director’s Decision, the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].
5. The applicant appealed to the Board. After a hearing on 31 October 2018, the Board dismissed the applicant’s appeal by its Decision. In dismissing his appeal, the Board found various inconsistencies in the applicant’s account of events, rendering them (and the applicant’ alleged fear of harm) incredible.
The Judge’s decision
6. The applicant filed a Form 86 on 11 March 2019 seeking to judicially review the Board’s Decision.
7. In his Form 86 and his supporting affirmation, the applicant raised various grounds for review, which essentially were complaints that he was unassisted by interpreters and legal representation during the processing of his claim by the Director and the Board, and that the Board took into account irrelevant considerations, such as “source of news which is not officially recognised or it is simply hearsay”.
8. After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [11] to [19] of the CALL-1 Form:
“11. The applicant filed Form 86 dated 11 March 2019 for leave to apply for judicial review of the Board’s Decision.
12. In his statement attached to Form 86, he set out the grounds in support of his application, which I shall summarize below.
(1) The Board had unlawfully fettered its discretion by refusing his appeal.
(2) The adjudicator acted in a procedurally unfair manner in dealing with his appeal: hearing bundle was given to him some 6 days before the hearing and the contents are mostly in English; he was unable to afford an interpreter and he was confused at the hearing.
(3) The respondent’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are/a result of procedural errors or unfairness: the applicant having answered all the Board’s question, yet the Board disbelieved his evidence, which is unfair.
(4) The Board had relied upon the source of news which is not officially recognized or it is simply hearsay, resulting in its speculation on his risk of returning to his country.
DISCUSSION
13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13.(1) …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.’
16. The grounds in paragraph 12 above do not assist his application. Ground (1) is only his bare assertion. Ground (2) fails too as there was no application to the Board for adjournment for not having enough time to prepare his hearing. Lack of language assistance is not a valid ground to challenge the Board’s Decision[1] and there is no evidence that he was confused at the hearing. He also alleged that he had answered all the questions put to him by the Board. Ground (3) fails as the Board is entitled to assess his evidence and ground (4) is only his opinion without evidence in support.
17. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.
18. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.
CONCLUSION
19. I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.”
The present application for extension of time to appeal
9. The applicant’s address at the time he filed the Form 86 was at No.74 Pitt Street, Yau Ma Tei.
10. Since then, the applicant had moved to various addresses, the latest of which, as he informed the court on 18 May 2022, was at Nathan Road, Tsim Sha Tsui (“the TST Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the TST Address on 17 August 2022, and it was not returned undelivered.
11. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 17 August 2022.
12. The applicant thereafter took out a summons in the Court of First Instance on 26 September 2022 seeking extension of time to appeal, in which his address was stated to be the TST Address. In the summons he stated that he “did not get the High [Court] letter”. In his supporting affirmation filed on the same date, he deposed that he “failed to appeal and [he did not] agree with High Court judgment”.
13. The applicant’s application to appeal out of time was dismissed by the Judge on 21 October 2022[6].
14. By a summons filed on 3 November 2022, the applicant renewed his application for an extension of time to appeal before this court. In the summons, the applicant repeated that he did not receive the “High Court letter” on time. In his supporting affirmation, the applicant stated as the court did not extend time for him to appeal, and that he disagreed with the court’s “two decision[s]”.
15. The applicant lodged his written submissions on 17 November 2022, in which he restated the background to his claims and the alleged dangers he may face if he was refouled. He further claimed that officers of the Director “cheat[ed]” him before the interview with him.
Discussion
16. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
17. As noted above, the Judge’s decision was sent to the last known address of the applicant and was not returned undelivered. The inference to be drawn is that he has received the letter from the court, and he has had knowledge of the Judge’s decision within the period which he was permitted to lodge the intended appeal.
18. Further, there is no explanation on the part of the applicant as to how and when he had come to learn of the Judge’s decision dated 17 August 2022.
19. Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.
20. We have nonetheless proceeded to consider the merits of the intended appeal.
21. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
22. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
23. We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.
24. Further, the applicant’s complaint of prejudice by reason of his lack of proficiency in English is unfounded and of little or no merit. We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.
25. We are likewise unpersuaded by the applicant’s complaints that the Board took into consideration irrelevant considerations or that the Director’s officers had ‘cheated’ him. These accusations are made without any particulars, basis or evidence, and amount to nothing more than bare assertions.
26. It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge. This has clearly not been done here.
27. For these reasons, we do not see any prospect of success in the intended appeal. This court will not grant an extension of time for a hopeless appeal. The summons filed on 3 November 2022 is accordingly dismissed.
| (Peter Cheung) |
(Aarif Barma) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] [2022] HKCFI 2405
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2022] HKCFI 3103
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