RE AHMEED SHAKIL

CAMP 33/2022

[2022] HKCA 501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 33 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1956/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ K W Lung (“the Judge”) dated 8 December 2021 refusing to grant leave to the applicant to apply for judicial review out of time. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 12 April 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 21 April 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of India.  He arrived in Hong Kong on 4 June 2014 and was permitted to remain as a visitor for 14 days.  The applicant overstayed and was arrested by the police on 4 August 2014.  The applicant thereafter lodged a non-refoulement claim on 6 August 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by one Mohammed Firoz and/or members of the India Trinamool Congress if he was refouled to India.  The details of the applicant’s claim have been summarised by the Judge at [5] of his decision (“the CALL‑1 Form”)[1].

4.  By a Notice of Decision dated 21 April 2017, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 26 February 2018, the Board dismissed the appeal on 12 April 2018.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board rejected the applicant’s evidence by reason of its inconsistencies, and it accordingly also rejected the applicant’s claims regarding his fears.

The Judge’s decision

6.  The applicant filed a Form 86 on 18 September 2018 seeking to judicially review the Board’s Decision without setting out any grounds of review.  In his supporting affirmation, he alleged that the Board did not properly assess his claim, that he did not understand English and was not provided with legal advice.  

7.  After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL‑1 Form:

“12.  As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  The delay of about 5 months is, of course, serious.  However, I shall first consider the merits of the applicant’s case.

13.  The Court will bear in mind that the Board’s Decision 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.  His grounds in support of this application do not assist his application.  To say that the Board had not properly assessed his case is only his opinion without any evidence in support of it.  The Board had a rather protracted discussion with him at the hearing.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.  His reservation of right to make further submissions on BOR 2 risk is not a ground in support of his application.  He should have prepared his submissions before making his application.

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.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to extend time for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The present application for extension of time to appeal

8.  The applicant’s address as stated in his Form 86 was at Mody Road, Tsim Sha Tsui (“the Mody Road Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Mody Road Address on 8 December 2021.  This letter was not returned undelivered.  

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 8 December 2021.

10.  The applicant took out a summons in the Court of First Instance on 28 December 2021 seeking extension of time to appeal, in which his address was stated to be at Nathan Road, Tsim Sha Tsui.  His stated in the summons and his supporting affirmation that he did not receive the CALL‑1 Form in time.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 21 January 2022[6].

12.  By a summons filed on 25 January 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant alleged that the letter sent to him by the court containing the CALL-1 Form was lost in the post.

13.  In the applicant’s written submissions dated 8 February 2022, he referred to ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

15.  The applicant has proffered no reason or explanation for the delay in bringing the intended appeal other than to make a bare allegation that the letter enclosing the CALL-1 Form was lost in the post.  Insofar as he may not have received the letter as a result of a change of his address, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with him.  

16.  In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

17.  We have nonetheless proceeded to consider the merits of the intended appeal.

18.  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 role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise 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)].

19.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

20.  Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)]. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  As to the applicant’s complaint that he was not proficient in English and did not receive legal advice, we note that the applicant has had the benefit of legal representation from the Duty Lawyer Service in presenting his case to the Director, including the submission of his non-refoulement claim form and at his screening interview.  This court has repeatedly held that it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  It suffices for legal representation to be provided at the initial stage, with subsequent legal representation being provided on a merits basis.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

23.  Turning to the written submissions and the well-established legal principles cited therein, there was no attempt by the applicant to elaborate on how they were misapplied or contravened in the processing of his non-refoulement claim, or to explain how they applied to his case.

24.  For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 25 January 2022 is accordingly dismissed.