RE IRFAN AHMED

CAMP 382/2022, [2023] HKCA 882

On Appeal from [2022] HKCFI 1361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 382 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2318 OF 2018)

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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 Lung (“the Judge”) dated 24 May 2022[1] dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission to support the application.  

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 applicant’s summons, affirmation and submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of India aged 36.  He came to Hong Kong on 25 April 2015 and was permitted to remain as a visitor for 14 days.  He overstayed.  Two days later on 11 May 2015, he surrendered himself to the Immigration Department and raised a non-refoulement claim.  He claimed to be in fear of being harmed or killed by two creditors, Imtiaz and Yasin, due to his inability to repay his debt.  The details of the applicant’s claim were set out in the decision of the Director of Immigration (“the Director”) at [6].  We will not repeat them.     

5.  By his decision dated 26 April 2018, the Director rejected the applicant’s claim.  The decision covered the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds. 

6.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board (“the Board”).  At the oral hearing held on 17 August 2018, the applicant gave evidence and answered questions from the Board.  By its decision dated 26 September 2018, the Board dismissed the appeal.  In gist, the Board considered it was a pure private loan dispute, and on the applicant’s case, Yasin had done nothing to him and Imtiaz only made empty threats to pressurise the applicant to make repayment but had no intention to kill the applicant.  The Board held that the applicant failed to establish his treatment amounted to torture, ill-treatment, or there are substantial grounds for believing he would be subjected to torture or arbitrary deprivation of life.  In any event, the Board found state protection and internal relocation were reasonably available, which would reduce or negate any risks he might face.  The Board concluded that the applicant’s claim failed on all applicable grounds.   

7.  On 23 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to apply for judicial review.  The applicant did not set out any ground for seeking relief. 

8.  The Judge dealt with his application on the papers as the applicant did not request an oral hearing.  By a Form CALL-1 dated 24 May 2022, the Judge dismissed the application.  He gave his reasons in [12] to [17] as follows:

“12. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

14. 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.”

15. The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

16. 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.

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

9.  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. 

10.  By a summons filed on 18 July 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the papers, and by his decision handed down on 11 August 2022[6] refused to extend the time for appeal. 

11.  On 26 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.

12.  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.

13.  The applicant was out of time by six weeks.  This is a substantial delay.  In his summons and affirmation filed in the court below, he explained that, as a layman, he was ignorant of court procedures.  He has, however, not explained what steps he had taken to establish the relevant procedures if he was minded to bring an appeal.  While we do not find the explanation for the delay entirely satisfactory, we will focus on the merits of the intended appeal, which is a more important consideration.  

14.  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].

15.  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.

16.  In the present application, the applicant stated in his summons and affirmation that the Judge failed to consider the BOR 2 risk ground, and that his life is still in danger.    

17.  In his written submissions, the applicant quoted extensively from cases dealing with the high standards of fairness (Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289) and the Wednesbury unreasonableness ground (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).  He submitted that: (1) the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim; (2) the Board acted in a procedurally unfair manner in dealing with the applicant’s case and did not properly assess his credibility; and (3) an administrative body’s exercise of discretionary decision making functions can be set aside if the decision in unreasonable.

18.  For the reasons set out below, we are of the view that the matters put forward by the applicant do not amount to viable grounds of appeal:

(1)  The complaint about the Board acted unfairly in assessing the applicant’s credibility is a new ground not raised in the Form 86. It is not permissible to raise new grounds, especially grounds that are fact-sensitive, on appeal. 

(2)  Further, no particulars were provided to show in what way the board had acted unfairly. 

(3)  In any event, this complaint is misplaced in that the Board had not made any adverse finding on the applicant’s credibility.

(4)  As to the argument that the Judge failed to consider the BOR 2 risk ground, this is also misplaced. Assessment of risks is a matter for the Director and the Board, who are the primary decision makers.  It is not the Court’s role in judicial review proceedings to re-consider a claimant’s non-refoulement claim or to re-assess the risk claimed.  The applicant has not put forward any legal error, irrationality or procedural irregularity in the Board’s determination of his appeal.  In these circumstances, there is simply no room for the Judge to judicially review the Board’s decision. 

(5)  As to the legal propositions quoted in the written submissions, it has not been shown how they relate to the applicant’s case or intended appeal.  

(6)  We have separately considered the Board’s decision.  We also do not discern any viable ground to disturb the Board’s decision.  We agree 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.          

19.  As the applicant’s intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 26 September 2022.