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CAMP 490/2021
[2022] HKCA 503
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 490 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 582/2017)
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| RE: |
KARIM FAZAL |
Applicant |
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Before: Hon Yuen JA and Barma JA in Court
Date of Judgment: 22 April 2022
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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 Campbell-Moffat J (“the Judge”) dated 20 October 2021 refusing to grant an extension of time to appeal against the Judge’s decision dated 13 April 2018, by which the Judge refused leave for the applicant to apply for judicial review against the decisions of the Director of Immigration (“the Director”) dated 26 February 2016 and 1 June 2017 (“the Director’s Decisions”) and the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 26 July 2017 (“the Board’s Decision”) by which the applicant’s non-refoulement claim and appeal were both refused.
Background
2. The applicant is a national of Pakistan. He entered Hong Kong illegally on 22 February 2014 and was arrested by the police on 15 March 2014. The applicant thereafter lodged a non-refoulement claim on 17 March 2014.
3. The applicant’s claim was based on a fear of being harmed or killed by his religious opponents if he was refouled to Pakistan. The details of the applicant’s claim have been summarised by the Judge at [4] of her decision (“the CALL‑1 Form”)[1].
4. By Notices of Decision dated 26 February 2016 and 1 June 2017, the Director decided against the applicant’s claim. The Director’s Decisions 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 13 July 2017, the Board dismissed the appeal on 26 July 2017. The Board’s Decision covered all four grounds for non-refoulement protection. The Board rejected the applicant’s case, which it did not find to be credible or established on the evidence before it.
The Judge’s decision
6. The applicant filed a Form 86 on 4 September 2017 seeking to judicially review the Director’s Decisions and the Board’s Decision without setting out any grounds of review. In his supporting affirmation, he stated that he did not wish to return to his home country because his life was in danger.
7. After summarizing the facts and background of the case and giving due consideration to the Board’s Decision 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 [9] to [12] of the CALL‑1 Form:
“9. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.
Grounds of review
10. There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.
Conclusion
11. I have considered the papers, grounds and submissions 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 Director and 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 their determinations, which were open to them on the facts and eminently reasonable.
12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave. I therefore refuse leave for judicial review.”
The present application for extension of time to appeal
8. The applicant’s address as stated in his Form 86 was at Sai Yeung Choi Street, Mong Kok (“the Sai Yeung Choi Street 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 Sai Yeung Choi Street Address on 13 April 2018. 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 13 April 2018.
10. The applicant took out a summons in the Court of First Instance on 29 September 2021 seeking extension of time to appeal, in which his address was stated to be at Tai Fung Street, Yuen Long. He stated in the summons and his supporting affirmation that he did not receive the CALL‑1 Form.
11. The applicant’s application to appeal out of time was dismissed by the Judge on 20 October 2021[6].
12. By a summons filed on 1 November 2021, the applicant renewed his application for an extension of time to appeal before this court. In the summons, the applicant stated that he would like to seek leave to appeal against the Judge’s decision dated 20 October 2021, being the Judge’s refusal to grant an extension of time for him to appeal against her decision dated 13 April 2018. Although the application purported to seek leave to appeal against the decision dated 20 October 2021, we shall treat it as a renewed application for an extension of time against the substantive decision of 13 April 2018, by which leave for judicial review was refused.
13. In his supporting affirmation filed on the same date, the applicant states that he disagreed with the decision of the “decision maker” and that “because I do not know English and court procedure it is very hard to appeal against the decision”.
14. In the applicant’s written submissions dated 12 November 2021, he contended inter alia that the Board (i) unlawfully fettered its discretion; (ii) acted in a procedurally unfair manner; (iii) failed to meet the greater care and duty owed to a self-represented claimant; and (iv) relied on sources of news which was not officially recognised or was “simply hearsay”. He further submitted that the Board’s Decision was unreasonable or irrational in the public law sense.
Discussion
15. 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.
16. The applicant has proffered no reason or explanation for the delay in bringing the intended appeal. Insofar as it may be due to a failure to receive the decision due to 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.
17. In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.
18. We have nonetheless proceeded to consider the merits of the intended appeal.
19. 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)].
20. 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 or the Director’s Decisions. The applicant has not condescended to any particulars as to on what basis the Board’s Decision or the Director’s Decisions were 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.
21. 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)].
22. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that she had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
23. As to the applicant’s complaint that he was not proficient in legal procedure and English, it is trite that a lack of knowledge in legal procedure is not a valid excuse for non-compliance with the relevant rules and deadlines. Further, we note that the applicant has had the benefit of assistance by an interpreter in the proceedings below.
24. Lastly, all of the intended grounds of appeal as stated in the applicant’s written submissions were not raised as grounds for judicial review before the court below. It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst at §14(4)).
25. In any event, the grounds advanced by the applicant are vague and lack particulars. These grounds should also be dismissed for this reason.
26. Moreover, they are all directed at the decision of the Board and not the Judge and thus cannot amount to viable grounds of appeal.
27. 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 1 November 2021 is accordingly dismissed.
(Maria Yuen)
Justice of Appeal |
(Aarif Barma)
Justice of Appeal |
The applicant acting in person
[1] [2018] HKCFI 660
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2021] HKCFI 3149
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