RE AHMED FAIZ

CAMP 548/2022, [2024] HKCA 1151

On Appeal From [2022] HKCFI 2665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 548 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1072 OF 2019)

____________________

____________________

_______________

J U D G M E N T

_______________

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

1.  By a summons filed on 28 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 3 November 2022.  By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 3219) (“the EOT Decision”) against his earlier order dated 1 September 2022 dismissing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 2665) (“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 3 April 2019, dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 31 December 2014 and 15 November 2016 respectively rejecting his claim for non‑refoulement protection.

3.  Having considered the papers, 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”).

Background

4.  The applicant is a national of India.  He last arrived in Hong Kong as a visitor on 4 September 2009. He overstayed since 19 September 2009.  On 9 October 2009, he was arrested by the police.  On 13 October 2009, he made a torture claim, which was subsequently taken as a non‑refoulement claim upon the commencement of the unified screening mechanism.  His claim was made on the basis that, if refouled, he would be harmed or killed by three loan sharks Feroze, Zahid and Zamal because he was unable to repay a loan owed to them.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 31 December 2014, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[1], BOR3 risk^[2] and persecution risk^[3].

6.  By a Notice of Further Decision dated 15 November 2016 (“the Director’s Further Decision”), the Director rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[4].

7.  The applicant appealed the two decisions of the Director to the Board.  The applicant attended the hearings before the Board on 21 December 2016 and 8 March 2017, but elected not to give any evidence.

8.  On 3 April 2019, the Board dismissed the applicant’s appeal, and affirmed the decisions of the Director (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Deputy Judge at [11] ‑ [12] of the Leave Decision.  In essence, the Board considered that the applicant was unable to provide documentary proof or explanation in relation to the material aspects of his case, in particular, the terms of the loan and the outstanding amount of the loan[5].  The Board did not accept that the applicant had established any perceived risk of harm from his creditors due to his inability to repay his loan[6]. In any event, the Board found that the applicant would not face any substantial future risk of serious harm from the creditors upon refoulement[7], and that both state protection and internal relocation would be available to him[8].  Accordingly, the Board considered that the applicant’s claim failed on all applicable grounds and dismissed his appeal.

The Leave Decision

9.  On 23 April 2019, the applicant filed a Form 86 together with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Further Decision.  Given that the Director’s Further Decision was not amenable to judicial review, the applicant intended judicial review was considered correctly by the Deputy Judge as challenging against the Board’s Decision only: Re Moshsin Ali [2018] HKCA 549 at [31] ‑ [45].

10.  No ground of review was given in the Form 86 or in his supporting affirmation.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

11.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out at [16] ‑ [25] of the Leave Decision:

“16. 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).

17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18. 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.’

19. I have noted that the applicant had refused to provide further information to the Board upon request despite the Board’s warnings above. He cannot complain that the Board did not accept his evidence.

20. The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC, 526, CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

‘25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it”. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47’

21. The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim: section 37ZA (1)(a). As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. He had been told the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

22. Where the applicant refused to give evidence to verify his evidence, his evidence is no better than the hearsay evidence, which the Board was entitled to give very little or even no weight to it.

23. The applicant has not given any valid reason to challenge the Board’s Decision.

24. 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

25. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

The EOT Decision

12.  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.

13.  On 10 October 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over three weeks late with his intended appeal.  In both his summons and supporting affirmation, he did not provide any explanation for his delay or any ground in support of his application.

14.  By the EOT Decision, the Deputy Judge considered that the applicant was unable to show any realistic prospect of success in his intended appeal.  Accordingly, the Deputy Judge refused his application for extension of time to appeal.

The Present Application

15.  By a summons and a supporting affirmation both filed on 28 December 2022, the applicant applied for leave to appeal against the EOT Decision.  In his summons, he failed to give any reason in support of his application.  In his supporting affirmation, he asserted that he disagreed with the decisions made and did not think his case was determined fairly.

16.  Pursuant to the directions of the Registrar of Civil Appeals made on 28 December 2022, the applicant lodged his written submissions on 11 January 2023.  In those submissions, he repeated his disagreement with the decisions made by the Director and the Board, and also his complaint that his case was not determined fairly.  He contended that it was not easy for him to appeal against the decision as he did not know thoroughly how his case was determined.  He complained that he was not provided with legal and language assistance and that there had been procedural unfairness in the decisions reached.  He further complained that he was not fully informed of his rights and was not given opportunity to be heard with assistance.

Discussion

17.  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.

18.  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].

19.  We consider that the applicant’s delay of over three weeks is substantial.  Given the applicant failed to provide any cogent explanation for his delay in any of his summonses or supporting affirmations, the court will only grant extension of time if his intended appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

20.  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].

21.  Nowhere in his summons or supporting affirmation for the present application did the applicant identify any errors committed by the Deputy Judge in the Leave Decision.  His complaints are general and bare assertions without any specific particulars, elaboration or evidence in support.  They do not constitute viable grounds of appeal and there is clearly no basis to disturb the Leave Decision.

22.  In any event, the allegations in his written submissions are wholly without merit.  It is trite that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he desires: Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  The applicant elected not to give oral testimony in the two hearings before the Board.  He did not request any oral hearing before the Deputy Judge.  There is no merit in his complaint that he was not provided opportunity to be heard with assistance.  Further, in the present case, all the court documents, including the summonses, the supporting affirmations, and the written submissions in support of this intended appeal, were written in English.  It shows that either the applicant is himself conversant with the English language or he has access to language assistance of his own if he finds it necessary.  It is therefore clear that the applicant was not in any way prejudiced.

23.  Furthermore, it is well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  The applicant was provided with legal assistance under the Duty Lawyer Service in the determination of his non-refoulement claim by the Director.  In any event, the assessment of his non-refoulement claim by the Board and the consideration of his application for leave to apply for judicial review by the Deputy Judge were thorough and fair.  We consider that a high standard of fairness has been achieved in the overall process of the determination of his non-refoulement claim.  Accordingly, there is no merit in his intended appeal.

24.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 28 December 2022 is dismissed.