RE QASIM ALI

CAMP 348/2022; [2023] HKCA 879

On appeal from [2022] HKCFI 621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 348 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1617 OF 2021)

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JUDGMENT

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Hon Chu VP (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 To (“the Judge”) dated 18 March 2022[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation to support his application and lodged a written submission pursuant to the directions given by the Registrar of Civil Appeals.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in the application and the applicant’s written submissions, 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”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 33.  The applicant entered Hong Kong illegally and surrendered himself to the Immigration Department.  He failed to report to the department on 17 July 2019, and was arrested by the police on 8 June 2021.  He then raised a non-refoulement claim based on fear of being harmed or killed by his paternal uncle due to a dispute over a plot of land owned by the applicant’s father in Pakistan.  The details of the applicant’s claim were set out in the decision of the Director at [7] and summarised by the Judge at [6] to [13] of the Form CALL-1 dated 18 March 2022.  We will not repeat them.     

6.  By his decision dated 10 August 2021, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

7.  The applicant appealed the Director’s decision to the Board.  The Board heard the appeal at an oral hearing held on 11 October 2021.  The applicant initially elected to give evidence, but when the Board sought clarification as to why he did not promptly seek non-refoulement protection and instead chose to remain in Hong Kong without any lawful immigration status for two years, he refused to answer any further questions from the Board.  Despite having explained to him the consequences of his refusal to answer, which included the loss of opportunity to clarify his claim and persuade the Board that his claim was genuine, the applicant was adamant that his case had been set out in the appeal bundle and he would not answer questions from the Board.

8.  By its decision dated 4 November 2021, the Board dismissed the appeal.  In gist, the Board considered the applicant’s refusal to engage in the hearing process was indicative of him not wishing his claims to be tested by probative questions that might reveal his claims to be false. The Board found that his behaviour of not seeking non-refoulement protection for the two years after he came to Hong Kong was inconsistent with a person holding a genuine fear of harm.  The Board also found his evidence before the Director to be vague and lacking in details of the crucial events.  The Board was of the view that he fabricated a case of being harmed by his paternal uncle over a land dispute, and that there was no real risk that he will prospectively face any of the proscribed forms of harm.  The Board concluded that the applicant’s claim was not made out under any of the applicable grounds.

9.  On 26 November 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The applicant did not provide any ground for seeking relief.   

10.  The Judge listed the case for hearing on 20 January 2022 but the applicant failed to attend.  The Judge proceeded to deal with the application on paper.  By the Form CALL-1, the Judge refused to give leave to apply for judicial review for the reasons set out in [16] to [18] as follows:

“16. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

17. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and correctly identified the issues. The Board observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault.

18. The Applicant has not advanced any grounds for application.  For the above reasons, the Court could not detect any reasonably arguable grounds.  The Court could find no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was refused.”

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 decision within 14 days after it was made. 

12.  By a summons filed on 14 June 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 2 September 2022[6] refused the application. 

13.  On 14 September 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.  

14.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (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 for more than two months, which is a substantial delay.  In his affirmation in support of the application for extension made to the Judge, the applicant stated that he did not receive the Court’s Order.  The Court record showed that the Form CALL-1 and the court order were sent to an address provided by the applicant.  They were however returned by the post office undelivered on 17 June 2022.  As found by the Judge in his decision refusing the time extension application, the applicant had moved twice but failed to inform the court of his new address.  It is the duty of a litigant to inform the court of any change in his address for service.  In this case, the applicant’s delay was of his own making.  We do not consider that the applicant has satisfactorily explained his delay.  In light of this and the substantial delay, the applicant has to show that his intended appeal has a real prospect of success.

16.  In assessing 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]. 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.

17.  The applicant did not provide any ground in support of his intended appeal in the summons.  In his supporting affirmation, he stated that he is unrepresented and does not have access to legal advice. He further asserted that there is a good ground of appeal, but he did not give any elaboration or particulars. 

18.  In his written submissions, the applicant quoted extensively from Secretary for Security v Saktheval Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51], and referred to various decisions on the principle of Wednesbury unreasonableness.  He also submitted that the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.  He further made reference to section 37ZT of the Immigration Ordinance which concerns the late filing of notice of appeal to the Board.

19.  For the following reasons, we are of the view that the matters put forward by the applicant do not constitute viable grounds of appeal:

(1)  They have not pointed to any error in the Judge’s reasons and refusal to give leave for judicial review. 

(2)  The complaint of procedural unfairness before the Board was not raised before the Judge.  It is not permissible to advance a new ground, especially one that is fact-sensitive, on appeal.

(3)  In any event, there are no particulars to support the complaint.  As the Board’s decision clearly shows, the applicant had been explained and repeatedly reminded of the importance of engaging with the Board as well as the impact on the assessment of his claims if he refused to answer questions from the Board.  Despite this, the applicant persisted in refusing to answer the Board’s questions.  In our view, the Board had afforded the applicant full opportunity to respond to its queries.  We do not discern any procedural unfairness or irregularities.  Nor do we consider the Board to have failed to adhere to high standards of fairness.

(4)  There is no explanation as to how the quotes and legal propositions in the written submission relate to the applicant’s claim or intended appeal. 

(5)  The reference to section 37ZT of the Immigration Ordinance is misplaced since the applicant was not late in his appeal to the Board.

(6)  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.       

20.  As the applicant’s intended appeal against the Judge’s refusal of the application for 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 applicant’s summons filed on 14 September 2022.