RE RAZA ATIF

CAMP 447/2021

[2022] HKCA 873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 447 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1964 OF 2018)

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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 dated 8 October 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“DHCJ Lung”)  dated 27 September 2021 refusing the applicant’s application for extension of time to appeal ([2021] HKCFI 2722)  (“EOT Decision”)  against the Deputy High Court Judge To’s (“DHCJ To”)  earlier order dated 21 May 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 1452)  (“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 6 September 2018 (“the Board’s Decision”)[1], dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 23 April 2015 and 15 February 2017 rejecting his claim for non-refoulement protection (collectively referred as “the Director’s Decisions”).

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”).

Background

4.  The applicant is a national of Pakistan.  He was arrested by the police for illegal remaining in Hong Kong on 21 October 2009 and was referred to the Immigration Department on 22 October 2009.  On 23 October 2009, he lodged a torture claim which was taken to be a non-refoulement claim under the unified screening mechanism by the Immigration Department.  His claim for protection was made on the basis that he would be killed by the people of Pakistan Muslim League (N)  (“PML-N”)  for taking avenge of his support of the Pakistan Muslim League (Q)  (“PML-Q”).  Details of the applicant’s claim were summarised by DHCJ To at [8] - [9] of the Leave Decision.

5.  By a Notice of Decision dated 23 April 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[2], BOR3 risk[3] and persecution risk[4].  By a Notice of Further Decision dated 15 February 2017 (“the Director’s 2^nd Decision”), the Director rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[5].

6.  On 11 May 2015, the applicant appealed against the Director’s 1^st Decision to the Board.  As he was four days late in filing his notice of appeal, the Board dismissed his application for leave to appeal out of time on 27 July 2015 (“the Board’s 2015 Decision”).  He later sought leave to apply for judicial review against the Board’s 2015 Decision and on 9 June 2017, he obtained an order of certiorari quashing the Board’s 2015 Decision.

7.  On 14 February 2018, the Board heard the applicant’s appeal against the Director’s Decisions.  The Board dismissed his appeal on 6 September 2018.  Having assessed the evidence, the Board observed significant discrepancies in his evidence and flagrant deviations from the applicant’s non-refoulement claim form and the Country of Origin Information (“COI”).  The Board considered that the applicant had fallen far short of proving the primary facts on a balance of probabilities and rejected his account completely.  The Board considered that the applicant failed to substantiate his case on all applicable grounds and accordingly, dismissed his appeal.

The Leave Decision

8.  On 18 September 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  As the applicant did not attend the oral hearing held on 17 May 2021, DHCJ To considered his application on paper.

9.  By the Leave Decision, DHCJ To dismissed his application for leave to apply for judicial review.  His reasons were set out in detail at [15] - [29] of the Leave Decision.  In gist, DHCJ To was of the view that the applicant’s complaints that the Board’s had been procedurally unfair and irrational and unreasonable were without merit.  The applicant had legal representation presenting his case to the Director and it was well established that a non-refoulement claimant did not have an absolute right to free legal representation at all stages of the proceedings.  The applicant also had abundant time to prepare for his oral hearing before the Board.  As to his complaint on the lack of language assistance, he could write good English or had access to language assistance of his own as the Court documents filed by him were all in English.  He also failed to give any particulars or evidence to support his bare assertion that the COI relied by the Board was hearsay or unreliable.

The EOT Decision

10.  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.

11.  On 7 June 2021, the applicant filed a summons (“EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was three days late with his intended appeal.  In his supporting affirmation, he asserted that he did not receive the Leave Decision and that he did not have financial resource or knowledge of the Court’s procedures.

12.  By the EOT Decision, DHCJ Lung was not satisfied that the applicant had provided a good reason for his delay or any valid ground of appeal.  DHCJ Lung considered that the applicant did not have any realistic prospect of success in his intended appeal and refused to extend time for his intended appeal.

The Present Application

13.  By a summons and supporting affirmation both filed on 8 October 2021, the applicant applied for leave to appeal against the EOT Decision and contended that he disagreed with the decision makers as there was no investigation in his case and their decisions were unfair.

14.  Pursuant to the directions given by the Registrar of Civil Appeal dated 8 October 2021, the applicant lodged his written submissions on 20 October 2021.  In his submissions, he contended that there was a lack of legal representation and language assistance for his BOR2 assessment.

Discussion

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.  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].

17.  Although a delay of three days is not substantial, the applicant fails to give any evidence to support his reason for delay. According to the Court record, the Leave Decision and the Court’s sealed order were sent to the applicant’s last known address and was not returned undelivered.  As such, the Court will only grant extension of time if his 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].

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, there is no substance in the applicant’s complaints.  It has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We noted that all of the Court documents filed by the applicant in this Court and the Court below were in English which demonstrated that he was proficient in the English language or had access to language assistance.  As he provided no additional information to the Immigration Department, the Director assessed his claim on the ground of BOR2 risk based on the materials previously submitted to the Director which were prepared with both legal and language assistance.  In the circumstances, we see no prejudice suffered by the applicant and his contentions are without substance.

20.  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 8 October 2021 dismissed.