RE RAHMAN ZUBAIR

CAMP 449/2022, [2023] HKCA 1155

On Appeal From [2021] HKCFI 3266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 449 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2803 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 11 November 2021, DHCJ Suffiad (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance on 11 May 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by DHCJ To on 12 August 2022.

3.  On 27 October 2022, the applicant filed a summons in CAMP 449/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 27 October 2022, the applicant lodged his written submissions on 10 November 2022.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of India. He had entered and then left Hong Kong for a total of 3 times between November 2007 and January 2008. He last arrived in Hong Kong on 21 November 2008 and was permitted to stay as a visitor until 5 December 2008. He did not depart and had overstayed in Hong Kong since. He was arrested by the police on 8 December 2008 and was referred to the Immigration Department for investigation. On 11 December 2008, he lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment alleging that if refouled, he would be harmed or even killed by his neighbour and his two sons over a land dispute. His torture claim was rejected on 7 November 2013. He did not lodge an appeal. On 22 November 2013, the applicant made a non-refoulement claim on the same basis. The factual background of this case was succinctly summarised by the Judge at [12] – [18] of the JR Decision ([2021] HKCFI 3266).

7.  By a Notice of Decision dated 24 October 2017, the Director of Immigration (“the Director”) decided against the applicant’s claims. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2] and the persecution risk[3].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The applicant attended an oral hearing on 6 September 2018 and by its decision dated 12 November 2018, the Board dismissed the applicant’s appeal. For reasons set out at [14] – [43], the Board found that the applicant’s evidence on the important elements of his case was inconsistent and contradictory, in particular, he made no mention that his father was caught and had his neck squeezed over the land dispute which he identified as the triggers for him to flee India in 2008. The Board further noted that even though his mother was the owner of the land in dispute and is pursuing a court case over it, she has not been harmed in any way. He was inconsistent as to how many fights he had with his neighbour. On the totality of evidence, the Board was not satisfied that the applicant faced any risk of harm for any of the reasons he had claimed, and it was not accepted that he was ever involved in any verbal or physical conflict with anyone in India, including his neighbors, nor that he or his family was/were targeted for harm for any reason. It was not believed that he would face any form of the proscribed harm if refouled, and for these reasons, the applicant's non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 7 December 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision. He did not advance any grounds for relief in his Form and supporting affirmation.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [23] - [31] of the JR Decision:

“23. The relevant principles on appeals in non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [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 decisions of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidcenc 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.

24. When the Applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore while the court examines the decision of the Director and the Board, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

25. In this case, the Board came to the conclusions it did due to the numerous and significant inconsistent and at times contradictory evidence given by the Applicant at the hearing before the Board when that evidence was compared to what the Applicant had previously stated in the documents before the Board including his interview.

26. Those were factual findings of fact which is entirely within the province of the Board to make.

27. It has been said time and again that factual findings on the evidence, the risk of harm and availability of state protection as well as internal relocation are primarily the province of the Board and the Director and is not for this court to usurp those functions of the Board unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

28. The present complaint raised by the Applicant in his Form 86 contains nothing to indicate any error of law, procedural unfairness or irrationality in the decision of the Board.

29. Having gone through the decision of the Board carefully and thoroughly, it can be seen that the Board has considered the three available ground (with the exception of torture risk which had been dealt with in the CAT claim) separately and distinctly and has dealt with the merits of each limb individually.

30. It must also be accepted that no appeal having been lodged by the Applicant in respect of the decision of the Director in respect of CAT claim previously brought by the Applicant, that decision of the Director must be final.

31. The decision reached by the Board cannot be said to be in any way unreasonable. Nor can the court see any error of law, procedural unfairness or irrationality in the decision of the Board. There is no reasonably arguable basis to challenge the findings of the Board.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time. He filed a summons in the Court of First Instance on 11 May 2022 for an extension of time to appeal. That was dismissed by DHCJ To on 12 August 2022. Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

13.  As for (1), the applicant was late by more than 5 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance. His delay was very substantial.

14.  As for (2), the reasons for the delay, he only alleged that he took the JR Decision from the court on 11 May 2022, without any explanation and elaboration. It was presumed by the court that the applicant meant that he did not receive the JR Decision and he only obtained a copy of it on 11 May 2022 by searching the court file. To assist him in presenting a proper case, the court gave him directions by letter dated 10 June 2022 to file a statement within 14 days of the letter stating (a) the date when he received the JR Decision; and (b) the grounds of his intended appeal. However, he failed to respond. His bare assertion that he did not receive the JR Decision is not a reasonable explanation for his substantial delay.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, save to say that the Judge was wrong in accepting the Board’s finding and failed to consider his non-refoulement claim on all applicable grounds, in particular on grounds of risk of violence under articles 2 and 22 of the Hong Kong Bill of Rights Ordinance.

16.  In his written submissions, he claimed the decision disposed of his torture claim and made him liable to be removed, which entailed significant implications for his substantial right not to be subjected to torture and his right to non-refoulement protection. He quoted cases contending that the high standards of fairness are required in the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing his credibility. However, he did not explain or elaborate on how the aforesaid cases and legal provisions were relevant to his case.

17.  In our judgment, the applicant's complaints that the Judge had wrongly decided to endorse the Board's decision was no more than his mere and general disagreement with the JR Decision without any elaboration and specifics in support of his contentions. General assertions without particulars cannot be effective grounds to support a judicial review, see: Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578.

18.  It is clear from the Board's decision that the applicant's case was rejected on the issue of credibility as his evidence on the key elements of his case was inconsistent and contradictory. The Board did not find any substantial grounds to believe that he would face any real risk of harm if refouled and his non-refoulement claim was rejected on all applicable grounds. These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds. We see none in this case.

19.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and had rightly dismissed the leave application. We find nothing amiss in the JR Decision.

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 27 October 2022.