RE ALAM KHAN

CAMP 315/2019

[2020] HKCA 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 315 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 361 of 2018)

_______________

_______________

_______________

J U D G M E N T

_______________

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

Introduction

1.  On 5 October 2018, by way of a decision set out in Form CALL-1 ([2018] HKCFI 2138), Deputy High Court Judge Josiah Lam (“DHCJ Lam”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 2 March 2018 (“the Board’s Decision”).

2.  In the Board’s Decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 3 January 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  On 27 September 2019, the applicant sought extension of time to appeal the decision of DHCJ Lam (“DHCJ Lam’s Decision”). According to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the 14-day time period for him to file the summons expired on 19 October 2018.  The applicant was almost one year out of time.

4.  On 17 December 2019, Deputy High Court Judge Bruno Chan (“DHCJ Chan”) refused to grant extension of time to the applicant to appeal DHCJ Lam’s Decision (“DHCJ Chan’s Extension of Time Decision”).

5.  By a summons dated 20 December 2019, the applicant renewed his application before this Court.

Background

6.  The applicant is a national of India.  He entered Hong Kong on 19 June 2012 as a visitor and was allowed to remain until 3 July 2012. He overstayed and was arrested by the police on 5 July 2012.  He made a torture claim under Article 3 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 22 February 2013, which was rejected. Upon the implementation of unified screening mechanism, the applicant was notified that his claim would be assessed in all applicable grounds except the ground on risk of torture.

7.  The applicant’s claim was based on the fear that, if he was to be returned to India, he would be harmed or killed by Gudiya because he failed to repay her loan.  The factual background was summarized at paragraph 10 of the Director’s Decision and paragraphs 42 - 65 of the Board’s Decision.

8.  Briefly stated, the applicant claimed that he borrowed money from an infamous moneylender named Gudiya in 2008 for his own business.  At the beginning, the applicant was able to repay the principal loan and the interest.  However, his business went downhill and he started to default in payments in 2010.  Gudiya threatened the applicant with reference to her powerful uncle Zafar who was a government minister of the “Congress Party”[1] having influence over the police force.  In February 2010, Gudiya led four men into the applicant’s house and assaulted him.  The applicant did not report the attack to the police station for the fear of Zafar.  Subsequently, the applicant left his home village and eventually fled to Hong Kong.

Director’s Decision and the Board’s Decision

9.  By way of the Director’s Decision, the Director assessed and dismissed the applicant’s claim on the BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4].

10.  The applicant lodged an appeal to the Board against the Director’s Decision.  An oral hearing was held on 22 December 2017.  After hearing the applicant, the Board did not find the applicant to be a truthful witness.  The Board found that the applicant’s assertions were inconsistent with the country of origin information and incredible on the key issues, including whether the applicant had his own business, whether there was a loan and whether there was an assault (paragraphs 67 - 111 of the Board’s Decision).  Further, the Board observed that internal relocation was a viable option for the applicant (paragraph 120 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.

DHCJ Lam’s Decision

11.  On 7 March 2018, by way of a Form 86, the applicant sought to challenge the Board’s Decision by way of judicial review. In the Form 86, the applicant advanced the following grounds of review, which were succinctly summarized by DHCJ Lam at paragraphs 26 - 28 of DHCJ Lam’s Decision:

“Grounds of judicial review

26. In Form 86 and his affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

27. The Applicant also complained the appeal bundle was only served on him only seven days before the Board hearing. He could not prepare the appeal in time as he was unrepresented and had difficulty to find someone to translate the English documents for his understanding. He was thus confused of what happened. He complained the Adjudicator had not made appropriate arrangement.

28. The Applicant also complained the Adjudicator relied on outdated case or information not officially recognised or simply hearsay.”

12.  The Judge held an oral hearing on 25 June 2018.  During the hearing, the applicant said that he was not good in English and he prepared the Form 86 and supporting affirmation with the help of someone else.  He also said that all the grounds of review were stated in the Form 86 and supporting affirmation and that he had provided all the available materials to the Director and the Board: see paragraphs 30 - 31 of DHCJ Lam’s Decision.

13.  Having considered the documents and oral submissions of the applicant, DHCJ Lam refused to grant leave to the applicant to apply for judicial review.  He set out his reasons at paragraphs 32 - 44 of DHCJ Lam’s Decision:

“Discussion

32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

33. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.’

34. The Applicant complained he received the appeal bundle only seven days before the appeal hearing scheduled for 22 December 2017. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

35. The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the appeal hearing. The bundle was served on the Applicant in time.

36. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult and there was no evidence to suggest the bundle was voluminous or difficult.

37. A few days were certainly not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for the appeal. There was no evidence to show he had complained to the Adjudicator or asked for adjournment during the appeal hearing.

38. The Applicant said in his affirmation that he answered all the questions honestly. That would mean he knew well what was being asked and answered at will. He was not confused.

39. In court, the Applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.

40. The Applicant mentioned he was not given sufficient legal assistance. He had been represented by the Duty Lawyer Service up to the Director’s further decision dated 3 January 2017. There was no evidence to show he had re-applied for legal assistance from the Duty Lawyer Service afterwards.

41. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

42. The Applicant complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that and the Applicant also failed to point out the specifics.

43. There are other vague complaints by the Applicant. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. He had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

44. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

Application for extension of time before DHCJ Chan

14.  On 27 September 2019, after almost a year, the applicant took out a summons to seek extension of time to appeal DHCJ Lam’s Decision.  The applicant in his supporting affirmation explained that he was detained by the Immigration Department and did not receive any court correspondence.  He also said that as a litigant in person he was unaware of the 14-day rule.  He further argued that DHCJ Lam’s Decision was unfair because it did not allow him to clarify his situation in his home country.

15.  By way of DHCJ Chan’s Extension of Time Decision, DHCJ Chan dismissed the applicant’s summons.  He held that the delay was substantial and significant and that the applicant had failed to provide any documentary evidence to support his explanation.  There was thus no good reason for the serious delay.  In any event, it would be futile to extend time for the applicant as there was no prospect of success in the intended appeal.

Renewed application for extension of time

16.  On 20 December 2019, the applicant renewed his application for extension of time to appeal DHCJ Lam’s Decision and asked for leave to adduce a new ground of appeal before this Court.  In his supporting affirmation filed on the same day, he merely repeated the grounds he argued before DHCJ Chan that he did not receive the court correspondence and that he was unaware of the 14-day time limit.  He further indicated that upon taking legal advice he understood that there was a new good ground of appeal.  Nevertheless, he did not provide any particulars on the said new ground.

17.  In the written submissions lodged on 9 January 2020, he quoted some passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submissions further referred to section 37ZT of the Immigration Ordinance (Cap 115), and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and the accompanying evidence, as well as other relevant matters of fact within the Board’s knowledge.  However, the applicant did not further elaborate how the section could assist his case.

Legal principles

18.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  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 the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted.

19.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal, see: Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Re Ansar Muhammad [2018] HKCA 227; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

20.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. For the purpose of this application, the salient principles are as follows:

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant 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.

(3) 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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court.

Discussion

21.  In our view, the applicant’s application for extension of time is entirely without merit.

22.  A delay of more than 11 months is substantial in the context of the 14-day statutory time limit.  The applicant had failed to provide any documentary evidence, such as when and how long he had been detained in the Immigration Department, to support his explanation that he failed to receive the court correspondence.  Further, ignorant of law is also not an excuse for delay: see Re Hassan Ali [2020] HKCA 477, per Yeung VP at [17].  In the premises, there is no good reason for such substantial delay.

23.  With the substantial and inexcusable delay, the applicant must satisfy the court that the intended appeal has real prospect of success before extension of time is granted: Re Kasirah [2020] HKCA 468, per Yeung VP at [17] - [18]; Caramat Virginia Lobeban & Ors v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2020] HKCA 276, per Kwan VP at [12] - [14]; Re Mohammed Roni Khan [2020] HKCA 66, per Chu JA, at [14].

24.  In our view, the applicant’s intended appeal has no prospect of success, let alone a real one.

25.  First, the applicant merely repeated the arguments he had advanced but failed before the DHCJ Chan.  These are not viable grounds of appeal.

26.  Second, the applicant’s written submissions also do not assist him.  Other than making general and bare assertions that the decision makers did not adhere to the high standard of fairness, the applicant had failed to identify with sufficient particularities as to why DHCJ Lam was wrong in his reasons.  The applicant’s reference to section 37ZT of the Immigration Ordinance is also irrelevant.  These are also not viable grounds of appeal.

27.  Finally, the applicant’s claim that he was advised that there was a new good ground of appeal is a bare assertion without substance.

28.  The intended appeal therefore has no merits at all.  In any event, after reviewing the DHCJ Lam’s Decision, we are of the view that the deputy judge was right in refusing to grant leave for the applicant to apply for judicial review.

29.  Accordingly, we dismiss the applicant’s summons of 20 December 2019.