RE SHOUKAT ALI

CAMP 155/2021

[2021] HKCA 1396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 155 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1709 of 2018)

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JUDGMENT

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Hon Chu JA (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 10 June 2020 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of his application.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 30 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 31 August 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 41.  He entered Hong Kong illegally and was arrested by the police on 16 October 2015.  He later raised a non-refoulement claim based on fear of being harmed or killed by gang members belonging to the Pakistan Muslim League (Nawaz).  The details of the applicant’s claim were set out in the Director’s decision at [6] and the Board’s decision at [9] to [12] as well as [4] to [11] of the Judge’s decision in the Form CALL-1.  We will not repeat them.     

6.  By his decision dated 31 August 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 8 June 2018.  By its decision dated 30 July 2018, the Board dismissed the appeal.  The Board had significant concerns about the credibility of the applicant’s claim and the documents adduced by him, and was not satisfied of the truth of the central aspects of the applicant’s claim.  The Board did not accept the applicant or any of his family members had witnessed a gang rape in 2015 and he has been targeted, harmed or attacked because of this.  It also did not accept he had or has any profile in Pakistan of adverse interest to anyone, including the police or the gang or any networks linked to political parties. The Board held that there is no real risk of the applicant facing any of the prescribed forms of harm should he return to Pakistan, and concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.

8.  On 22 August 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He put forward three grounds for seeking relief in his affirmation, which are: (1) he did not have free legal assistance; (2) he has language problem as he does not know Chinese or English; and (3) he was not given the opportunity to make submission on the BOR 2 risk ground.

9.  The Judge listed the application for an oral hearing, but the applicant was absent at the hearing.  By a Form CALL-1 dated 10 June 2020[5], the Judge refused to give leave to apply for judicial review and gave his reasons at [19] to [25] as follows: 

“19. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that 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. Gound (1) fails.

20. 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. Ground (2) fails.

21. Ground (3) is simply not correct as BOR 2 risk was considered together with the other risks.

22. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

23. As the Board did not accept the applicant’s evidence in relation to the facts in support of his claim, the applicant has no factual basis for his claim.

24. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

25. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”       

10.  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 order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 24 June 2020.

11.  By a summons filed on 12 March 2021 together with a supporting affirmation, 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 5 May 2021[6] refused the application. 

12.  On 11 May 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him 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 respondent if an extension of time were granted. 

14.  The applicant was late by over 8 months, which is serious delay.  In the application before the Judge, the applicant explained that he did not know, and has no resources to find out, the appeal procedure.  In the present application, he did not give any explanation as to the delay.  While we accept that the applicant is not legally represented and may not be conversant with court procedures, we also note that he has not explained what attempts he has taken to find out what he should do if he has all along been intending to appeal. We are not satisfied that the applicant has given good reasons for his long delay.           

15.  As to 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].

16.  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.

17.  In the present application, the applicant has not provided any grounds for his intended appeal in the summons or supporting affirmation.  In his written submission, he stated that the Board had ignored many things related to his case, and the actual situation in his country is very different from what people think.  It is said that, in his country, torture and death of people in police custody is common, with many examples of this on the internet; that people like him live under threat as the enemies are strong and powerful; and it is very difficult to get justice in a corrupt system.  The applicant further claimed that he came to Hong Kong because he was unsafe in his country and he cannot return at this moment.  He asked to be allowed to stay in Hong Kong until his problem has been resolved.

18.  In our view, what was put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  Critically, he has not identified any ground that this Court can overturn the Judge’s decision.  Assessment of credibility and risks is for the Board, who is the primary decision-maker, and not for the Court.  In this case, the Board had, for reasons fully articulated in its decision, rejected the applicant’s evidence and case in its entirety.  The applicant has not shown, and the Judge had not found, any legal errors, irrationality or procedural irregularities in the Board’s finding and decision.  In the circumstances, the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing leave to apply for judicial review.

19.  As the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 11 May 2021.