RE AKRAM WASIM

CAMP 508/2022, [2023] HKCA 717

On Appeal From [2022] HKCFI 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 508 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 234 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  By a summons filed on 2 December 2022, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 24 November 2022.  By that order the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 3461)  (“the EOT Decision”)  against the Deputy Judge’s earlier order dated 28 January 2022, refusing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 358)  (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 25 April 2017 (“the Board’s Decision”), and the decision of the Director of Immigration (“the Director”)  dated 11 December 2015 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

4.  Subsequently, by two letters respectively received by the Court on 9 March 2023 and 17 May 2023, the applicant stated that as the problem in his home country was solved and he wanted to return to his home country.  He therefore requested to withdraw the present reapplication for extension of time to appeal.

5.  On the basis of his requests to withdraw his appeal, we dismiss the applicant’s reapplication for extension of time to appeal.  In any event, his reapplication fails for the lack of merit, which we will explain further below.

Background

6.  The applicant is a national of India.  He last entered Hong Kong on 19 August 2013 and was permitted to remain as a visitor until 2 September 2013, and his stay was subsequently extended to 5 September 2013. However, he did not depart and had overstayed since 6 September 2013.  On 18 September 2013, he was arrested by the police.  On 9 November 2013, he raised a non-refoulement claim on the basis that he would be harmed or killed by the members of All India Trinamool Congress (“TMC”)  as he refused to join their party.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

7.  By a Notice of Decision dated 11 December 2015, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

8.  Subsequently, the applicant appealed against the Director’s Decision to the Board.  The Board heard the appeal on 19 September 2016.  After considering the evidence, the Board found the applicant’s claim to be thoroughly unconvincing and lacking in authenticity. The Board further found that the relevant disputes between the TMC men and the applicant were purely a personal and private matter without any involvement of any public official or any other person acting in an official capacity.  The Board also noted that although the question of internal relocation did not strictly arise for consideration, internal relocation would nevertheless be available for the applicant.  Accordingly, the Board found that the applicant had failed to establish his non-refoulement claim on all applicable grounds and dismissed his appeal.

The Leave Decision

9.  On 24 January 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  By then, he was almost 18 months late in taking out his application.[5] No ground of review was provided in his Form 86 or supporting affirmation.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

10.  By the Leave Decision, the Deputy Judge refused to grant extension of time and dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [12] - [19] of the Leave Decision:

“12. As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

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 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14. The Court will bear in mind that the Board’s Decision 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 applicant has not raised any valid ground to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

19. I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review.  Accordingly, I dismiss his application.”

The EOT Decision

11.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

12.  On 1 November 2022, the applicant filed a summons (“the EOT Summons”)  for extension of time to appeal against the Leave Decision.  By then, he was almost 9 months late with his intended appeal.  The applicant did not give any explanation for his substantial delay.

13.  By the EOT Decision, as the applicant failed to give any explanation for his substantial delay, and that there is no merit in his intended judicial review, the Deputy Judge dismissed his application for extension of time to appeal.

The Present Application

14.  By a summons and supporting affirmation both filed on 2 December 2022, the applicant applied for leave to appeal against the EOT Decision.  In the summons, he failed to give any reason in support of his application.  In his supporting affirmation, he claimed that he was unaware of the rules regarding the time limit and that he was not legally represented.  He further alleged that the Deputy Judge’s decision was reached unfairly without allowing him the opportunity to clarify his case and situation in his home country.

15.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  Pursuant to the directions made by the Registrar of Civil Appeals on 2 December 2022, the applicant lodged his written submissions on 16 December 2022.  In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim.  The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision.  He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.  More importantly, none of his submissions identified any error in the Leave Decision.

Discussion

17.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

18.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

19.  In our view, his application has no merit at all and must fail.  We agree with the Deputy Judge that the applicant’s delay of 9 months before bringing his intended appeal was substantial and he failed to provide any cogent explanation for his delay.  Ignorance of the procedural rules and time limits was not a valid reason for his substantial delay.  Further, the arguments raised in his written submissions are all new grounds not raised before the Deputy Judge.  It is well established that this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Accordingly, we refuse to entertain his new grounds.

20.  More importantly, and in any event, his written submissions are all general and bare assertions and the applicant did not state how the legal propositions cited are relevant to his case.  He also failed to identify any error with specific particulars in the Leave Decision.  The applicant already had ample opportunities to advance his case before the Deputy Judge but failed to give any ground in support of his application before the Deputy Judge.  Accordingly, none of his submissions are proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

21.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  We would therefore have also dismissed the applicant’s summons filed on 2 December 2022 on merits in any event.