RE RAZA WALEED

CAMP 213/2019

[2020] HKCA 409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 213 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 170 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By a summons filed on 30 August 2019, the applicant renewed his application for leave to appeal against the decision given by Campbell-Moffat J (“the Judge”) on 30 April 2019 (“the Decision”) refusing leave to apply for judicial review.  The intended judicial review was against the decision of Torture Claims Appeal Board (“the Board”) dated 23 January 2018, in which the Board confirmed the decisions made by the Director of Immigration (“the Director”) dated 14 July 2016 and 22 March 2017.

2.  The applicant’s leave application to appeal against the Decision was refused by the Judge 16 August 2019.

3.  The applicant now renews his leave application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 3 September 2019, the applicant lodged his written submissions on 18 September 2019. 

4.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of Pakistan.  He came Hong Kong illegally on 18 March 2016 and was arrested by the police on the same day. He was then referred to the Immigration Department for investigation and on 22 March 2016, he lodged his non-refoulement claim by way of written representation on the basis that he would be killed by the Skakeel Ahmed (“SA”) and his associates because of a land dispute.

6.  By a Notice of Decision dated 14 July 2016, the Director decided against the applicant’s claim on BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 22 March 2017, the Director rejected the applicant’s claim on BOR 2 risk.

7. The applicant appealed to the Board. After the hearing on 13 December 2017, the Board dismissed the appeal on 23 January 2018. For the reasons and analysis stated in [26] to [49] of the Board’s decision, it found that the applicant did not sustain any serious injury despite his claim that SA and his people carried guns and knives in order to coerce him to transfer his land and thus the Board took the view that SA had never intended to cause the applicant any serious harm. Further, the applicant was able to lead a peaceful life in Bahria Town and Lahore for about a year before he fled to Hong Kong which showed that internal relocation was a viable option and his non-refoulement protection claim was not justified. The relevant Country of Origin Information (“COI”) also suggested that state protection is available upon his return to Pakistan. For the aforesaid reasons, the Board found that the applicant had failed to establish his claims on all applicable grounds.

The Judge’s Decision

8.  On 5 February 2018, the applicant filed his Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation, he did not provide any ground for his intended challenge except by complaining that the Board’s decision was unfair and it was dangerous for him to return to his home country.

9.  The Judge considered the application on paper and by the Decision dated 30 April 2019, she decided to refused leave for the applicant to apply for judicial review.  The reasons for her refusal were duly set out at [10] of the Decision:

“10. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. 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 Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.”

10.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appeal (which expired on 14 May 2019).  By the summons filed on 20 June 2019, he sought an extension of time for him appeal against the Decision.  In his supporting affirmation, he did not provide any draft or proposed grounds of his intended appeal and he only gave a brief explanation that he was not aware of the 14-day time limit to appeal against the Decision and he only learnt about the Decision upon searching.  

11.  At the hearing before the Judge, the applicant further explained that he was already late by the time he knew of the decision on 14 June 2019, he sought help in order to make an application for extension of time and he eventually took out the summons on 20 June 2019.  Putting aside the issue of delay, the Judge focused on the more important issue of the underlying merit of the applicant’s case.  The applicant was asked but could not provide any grounds for his appeal.  The applicant admitted to the Judge that he merely did not want to be imprisoned by the Immigration Department and be refouled to Pakistan.

12.  By the decision dated 16 August 2019, the Judge refused to grant an extension of time as she found no merit in the applicant’s case. The applicant had failed to provide any ground of appeal and none could be ascertained from the papers.  There was no complaint before the court as to the Decision and the applicant just requested the Court of Appeal to reconsider his situation afresh.  The Judge was not satisfied that the intended appeal had any merit and dismissed the summons.

The Renew Application

13.  By the summons dated 30 August 2019, the applicant renewed the matter before us.  In the summons and the supporting affirmation, he did not provide any grounds of appeal.  In his written submissions, he quoted passages from ST v Director of Immigration[1] [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 accompanying evidence, and 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

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), 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: (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.  Even if the court does not accept that an applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

16.  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 (Cap. 4A). 

Discussion

17.  We are of the view that the delay of more than one month in taking out the summons for an extension of time to appeal against the Decision was substantial and the applicant failed to provide any good reason to explain for the delay.  

18.  Therefore, the applicant must demonstrate that the intended appeal has a real prospect of success before extension of time will be granted: see Re Ansar Muhammad [2018] HKCA 227. Here, the applicant failed to advance any grounds of appeal in the summons and in his supporting affirmation to challenge the Judge’s decisions for the present application.  The matters set out in the written submissions are general and without elaboration or explanation how they would assist the applicant’s case.

19.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal. 

Conclusion

20.  The summons dated 30 August 2019 is dismissed accordingly.

21.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.

[1] The correct citation should be ST v Betty Kwan.