RE AHMAD HAFIZ ZULIFQAR

CAMP 175/2021

[2021] HKCA 1478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 175 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 329 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 29 March 2019 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of his application.  

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

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 14 February 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 8 August 2016 and 17 July 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 51.  He entered Hong Kong on 13 September 2014 and was given permission to remain as a visitor for two weeks.  He overstayed and was arrested by the police on 29 October 2015.  He raised a non-refoulement claim on 24 November 2015 based on fear of being harmed or killed by his employer because the money he gave the applicant for depositing into the bank was robbed and lost.  The details of the applicant’s claim were set out in the Director’s first decision at [9] and the Board’s decision at [9] to [23] as well as [1] to [7] of the Judge’s decision in the Form CALL-1.  We will not repeat them.     

6.  By two decisions dated 8 August 2016 and 17 July 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds, and the further decision covered the BOR 2 risk[4] ground.

7.  The applicant’s appeal to the Board was heard on 29 December 2017.  By its decision dated 14 February 2018, the Board dismissed the appeal.  The Board considered there were a number of inconsistencies that casted doubts about the credibility and plausibility of the applicant’s claim.  While the Board accepted that the applicant had lost his employer’s money and the employer demanded him to return the money, it rejected the rest of the applicant’s claim.  The Board found that the applicant was investigated by the police for the loss of the money and is wanted as a fugitive from justice.  It also considered that state protection is opened to the applicant.  The Board held that there is no real risk of the applicant facing any of the prescribed forms of harm should he return to Pakistan, and concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.

8.  On 2 March 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The grounds for seeking relief set out in the Form 86 amended on 24 September 2018 have been summarised by the Judge as follows:

(1)  The Board failed to give adequate reason for its finding that there were inconsistencies in the applicant’s claim.

(2)  The Board’s finding of inconsistencies was irrational.

(3)  The Board placed undue weight on irrelevant or peripheral details in assessing the applicant’s credibility.

(4)  The Board failed to conduct an evidence-based assessment of the applicant’ evidence.

(5)  The Board made mistake of fact in relation to the “Second Incident” mentioned in the applicant’s claim.

9.  The Judge heard the application at an oral hearing.  By a Form CALL-1 dated 29 March 2019[5], the Judge refused to give leave to apply for judicial review and gave his reasons at [14] to [26]. 

10.  On Grounds (1) and (2), the Judge considered that some of the remarks made by the Board about the applicant with regard to the loss of the employer’s money were unnecessary and unfortunate.  The Judge, however, held that on the evidence, including the applicant’s oral testimony at the appeal, the Board was entitled to find there were inconsistencies in the claim.  Similarly, on Ground (3), the Judge was of the view that it did not advance the applicant’s case given that the Board was correct in finding there were inconsistencies in the applicant’s claim.  As to Ground (4), the Judge, after reviewing the Board’s analysis and findings on the Second Incident, found there was no basis for the complaint that the Board’s assessment of the applicant’s credibility was not evidence-based.  The Judge also held that on the evidence in the case, the Board was entitled to find that the applicant was a fugitive from justice.  As for Ground (5), the Judge found there was no material error in the Board’s consideration of the applicant’s claim.  The Judge concluded there was no error of law or procedural unfairness in the Director’s and the Board’s decisions, and the intended judicial review has no prospect of success.  He accordingly refused the application for leave to judicial review.    

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 12 April 2019.

12.  By a summons filed on 7 December 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 27 April 2021, and by his decision handed down on 11 May 2021[6] refused the application. 

13.  On 20 May 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

14.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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. 

15.  The applicant was late by almost one year and eight months, which is very serious delay.  In the application before the Judge, the applicant stated that he did not receive the correspondence from the court refusing his application as he was detained by the Correctional Services Department, and that he was unaware of the 14-day time limit for appeal. He put forward the same explanation in the affirmation in support of the present application.  We agree with the Judge, for the reasons he gave at [5] to [7] of the Decision dated 11 May 2021, that the applicant’s explanations about the delay was far from satisfactory.      

16.  As to the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.  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’s decision, 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.

18.  In the present application, the applicant has put forward the following ground in his supporting affirmation:

“The decision made by [the Judge] has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country.”

19.  The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and also made reference to the Wednesbury unreasonableness principle and section 37ZT of the Immigration Ordinance, Cap. 115, which relates to late filing of notice of appeal to the Board.  It is said that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim.  It further complained that the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal without properly assessing the applicant’s credibility.

20.  In our view, the ground and the arguments put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  The ground set out in the supporting affirmation is only a bare general statement, with no details or particulars.  As for the written submission, it was not shown how the legal propositions quoted in it relate to the applicant’s case.  For example, the reference to section 37ZT of the Immigration Ordinance is completely misplaced because we are not concerned with late filing of notice/petition to appeal with the Board.  

21.  We have also examined the Board’s decision.  We agree with the Judge that, while part of the remarks the Board passed on the applicant with regard to the loss of his employer’s money were inappropriate and uncalled for, the Board’s assessment of the credibility of the applicant and his claim was justified in light of the evidence in the case and the Board’s analysis and reasoning.  Assessment of credibility and risks is for the Board, who is the primary decision-maker, and not for the Court.  The applicant has not shown, and the Judge had not found, any legal errors, irrationality or procedural irregularities in the Board’s finding and decision.  In the circumstances, the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing leave to apply for judicial review.

22.  As the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 20 May 2021.