IQBAL QAMAR v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CAMP 75/2021

[2021] HKCA 1452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 75 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 254 OF 2018)

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JUDGMENT

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Hon Chow JA (giving the judgment of the Court):

INTRODUCTION

1.  By summons dated 9 March 2021, the Applicant applied to this Court for leave to appeal against the decision dated 26 August 2020 of Campbell-Moffat J (“Judge”) refusing to grant an extension of time (“EOT Decision”) to the Applicant to appeal against her earlier decision dated 15 June 2020 refusing him leave to apply for judicial review (“Leave Decision”).  The intended judicial review was directed at the decision dated 23 June 2017 of the Director of Immigration (“Director”) rejecting the Applicant’s claim for non-refoulement protection and the decision dated 18 January 2018 of the Torture Claims AppealBoard (“Board”) rejecting his appeal against the Director’s decision.

2.  Having considered the papers, we are of the view that it is appropriate to determine the summons dated 9 March 2021 without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

3.  The Applicant is a Pakistani national.  He entered Hong Kong illegally on 26 January 2016 and surrendered to the Immigration Department the next day.  He later submitted a claim for non-refoulement protection.  His claim was based on threats from his maternal uncle arising from a dispute over land.  The factual details of the Applicant’s claim were summarized by the Judge at [4] of the Leave Decision ([2020] HKCFI 1230).

4.  By a Notice of Decision dated 23 June 2017, the Director rejected the Applicant’s claim.  His decision covered torture risk^[1], BOR 3 risk^[2], persecution risk^[3], and BOR 2 risk[4].

5.  The Applicant appealed the Director’s decision to the Board.  He attended a hearing before the Board on 6 November 2017.  The hearing was adjourned to 8 December 2017 to give the Applicant an opportunity to present supporting evidence.  At the adjourned hearing, the Applicant asked for more time, which was refused by the Board.  It rejected the Applicant’s appeal on 18 January 2018.

6.  In rejecting the Applicant’s appeal, the Board noted that the dispute with his uncle was a family dispute over land, and that his uncle had never physically harmed him.  The violence at its highest was directed at his family home but not any family member.  Other incidents relied upon by the Applicant did not appear to be connected to the uncle.  Having assessed the level of harm claimed by the Applicant, the Board found that he had not satisfied the burden of establishing the relevant risks.

THE LEAVE DECISION

7.  On 15 February 2017, the Applicant filed a Form 86 to apply for leave to apply for judicial review of both the Director’s and the Board’s decisions.  Referring to Re Moshsin Ali CACV 54/2018; [2018] HKCA 549, the Judge held that the Director’s decision was not susceptible to judicial review as the Applicant had appealed against it to the Board and the Board had already dealt with the appeal ([2020] HKCFI 1230 at [7]).

8.  As for the Board’s decision, the Applicant’s grounds for review were that it was unfair and unreasonable and that he was not given sufficient time to obtain evidence.  The Applicant did not request for an oral hearing of the leave application.  The Judge dealt with the matter on paper.  By the Leave Decision, the Judge held that ([2020] HKCFI 1230):-

“11. The [Applicant] maintains that the decision of the [Board] was unfair and unreasonable and that he was given insufficient time to obtain the relevant evidence before the hearing. He does not say what that evidence may have been. I can see from the papers that it appears to relate to proof that the [Applicant] made a complaint to the police. It is not evidence of any actual harm being perpetrated against the [Applicant]. In essence he seeks a re-hearing of his appeal. He has not complained of any specific procedural irregularity, unfairness or unreasonableness other than the lack of time to obtain evidence …

12. Despite the fact that the [Applicant] did not submit any proper grounds of review … I have looked in particular inter alia, into the suggestion that the applicant was, in some way, prejudiced by his inability to obtain evidence and not being provided with sufficient time to do so. I have not found that to be the case. He had almost two years to substantiate his claim and he maintained that in November 2017, the documents he required were in the hands of a family member. If that was the case, there should have been no problem at all with obtaining them before the first hearing let alone the second. In any event, they did not take the matter further. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the [Applicant], the [Board] engaged in a joint endeavour with the [Applicant] and considered all relevant criteria; gave the [Applicant] a reasonable opportunity to state his case including time to obtain the requisite evidence and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

13. In my judgement, there is no reasonably arguable basis upon which the [Applicant] could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

THE EOT DECISION

9.  On 6 July 2020, the Applicant applied for an extension of time, as he was out of time by 7 days, to appeal against the Leave Decision given on 15 June 2020.  The Judge dealt with the application in a hearing on 26 August 2020.  The Applicant did not appear at the hearing, despite an earlier indication that he would do so.

10.  Noting that the Leave Decision was sent to the Applicant but was returned to the High Court, the Judge found that no explanation was given as to why it was unclaimed.  She went on to consider the merit of the appeal in the EOT Decision ([2020] HKCFI 2047) and refused to grant the extension of time sought by the Applicant for the following reasons:

“8. In his affirmation in support, the [Applicant] submits that‘there is a good ground of appeal…’. He did not substantiate it further…

10.  In any event, I have considered his underlying application … He maintained that the decision of the [Board] was unfair, unreasonable and that he was given insufficient time to provide the relevant evidence, which is addressed within paragraph 11 of the [Leave Decision].  It had no merit.  There were no other grounds of review which could be ascertained from the papers and he did not complain of any specific procedural irregularity, unfairness or unreasonableness other than that already mentioned.  There was no complaint before this Court as to its decision to refuse leave.  The applicant merely wishes the Court of Appeal to consider his situation afresh.  Having considered the length of delay, reason for the delay and underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.”

APPEAL AGAINST THE EOT DECISION

11.  By summons dated 9 March 2021, the Applicants sought leave from this Court to appeal against the EOT Decision.  No ground of appeal was indicated in the summons.  In his affirmation also of 9 March 2021, the Applicant stated that he was unrepresented and did not have access to any legal advice.  He also stated that it was his understanding that there was a good ground of appeal, without elaborating on any specific particulars.

12.  In his written submission dated 17 May 2021, the Applicant referred to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  Lastly, he made reference to the matters that the Board should consider where there has been late filing of a notice of appeal, without explaining the relevance of such reference.

DISCUSSION

13.  As the Court of Appeal held in Farrukh Zaib [2020] HKCA 408 at [21], although it is technically possible to appeal against a lower court’s decision refusing an extension of time to appeal, it is more appropriate to renew the application for extension of time before this Court. The Applicants’ summons of 9 March 2021 is therefore treated as a renewed application to this Court for extension of time to appeal against the Leave Decision given on 15 June 2020.

14.  It was further held in Farrukh Zaib [2020] HKCA 408 at [22] that, in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.  In the Applicant’s case, despite the Leave Decision being returned unclaimed, the Judge correctly held that it is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner[5]; and that the consequences of any delay arising from his failing to do so will fall upon the litigant[6] ([2020] HKCFI 2047 at [6]).

16.  Nevertheless, the Court would still examine if an applicant has merit in an intended appeal (Farrukh Zaib [2020] HKCA 408 at [23] to [24]).  In assessing the merit of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  However, general and bare assertions without any specific particulars are not proper grounds of appeal (Farrukh Zaib [2020] HKCA 408 at [28]; Re Mizan Sikder [2019] HKCA 20 at [17]).

17.  Regarding the Applicant’s affirmation of 9 March 2021, there is no absolute right to free legal representation at all stages of non-refoulement claim proceedings (Secretary for Securityv Sakthevel Prabakar (2004) 7 HKCFAR 187 and FB v Director of Immigration HCAL 51/2007).  Being legally unrepresented or lacking access to legal advice is not a proper ground of appeal.

18.  The Applicant’s understanding that there was a good ground of appeal, without any particulars, is not a proper ground of appeal either.  No valid ground of appeal can be discerned from the general propositions in the Applicant’s written submission regarding high standards of fairness, reasonableness of a decision, his bare assertion that the Board acted in a procedurally unfair manner without properly assessing his credibility, or his reference to late filing of a notice of appeal.

19.  The Applicant has failed to identify any proper grounds of appeal.  There is no merit and no prospect of success in his intended appeal against the Leave Decision.  The application for extension of time to appeal is refused and the Applicant’s summons dated 9 March 2021 is dismissed.