RE RASHID WALEED

CAMP 53/2023, [2024] HKCA 274

On Appeal From [2022] HKCFI 2848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 53 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 697 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  On 8 February 2023, the applicant took out a summons to apply for “Renewal Application for time Extension for my Notice of Appeal against the Order of the High Court on 30/1/2023”.  Deputy High Court Judge KW Lung (“the Judge”) on 30 January 2023 ([2023] HKCFI 165) (“the EOT Decision”) refused to grant the applicant an extension of time to appeal against an earlier order of the Judge dated 26 September 2022 ([2022] HKCFI 2848) (“the Leave Decision”) refusing leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 4 March 2019, dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 22 January 2018 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 14 January 2016 and was arrested by the police on the same date.  On 17 January 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Shehzad because of a land dispute.  Details of the applicant’s claim have been summarised by the Judge at [4] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 22 January 2018 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim on all applicable grounds: risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  On 4 March 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [8] ‑ [11] of the Leave Decision:

“8.  The applicant appealed the Director’s Decision to the Board. On 7 November 2018, the Board conducted an oral hearing for his appeal, during which he gave oral evidence with the assistance of an interpreter [18].

9.   During the hearing, the Board sought clarifications of the applicant’s claim [17]-[40]. Having considered all the evidence, the Board found that the applicant gave inconsistent evidence on how he and his brother came to the adverse attention of Shehzad [46]-[47]; that he gave different answers to how many times he was assaulted [48]; and that his assertion that he and his brother were located by Shehzad even after relocation was not convincing [51]. However, the Board considered the applicant’s core claim, i.e., the land dispute with Shehzad, to be consistent and formed a view that it could not dismiss the applicant’s claim purely on the aforesaid inconsistencies [55].

10.   Nevertheless, the Board found that the dispute with Shehzad was private matter without state involvement [68], that reasonable state protection was available to him [69], that, despite there existed a possibility of him being mistreated by Shehzad, the state protection negated such risk [78]-[79], and that internal relocation was viable [80]-[82].

11.   For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.”

7.  On 13 March 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86.  In his supporting affirmation, he only stated that his problem in his home country still subsisted.

THE JUDGE’S DECISION

8.  On 26 September 2022, as the applicant did not request an oral hearing, the Judge determined his application on paper and refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [14] ‑ [19] of the Leave Decision:

“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16. 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.’

17. The reason raised in paragraph 13 above is only his opinion and is not valid reason to challenge the Board’s Decision.

18. 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.

19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14‑day period.

10.  On 9 January 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was almost three months late with his intended appeal.

11.  On 30 January 2023, the Judge refused the applicant’s application, holding that the applicant had not been able to raise any valid ground to challenge the Board’s Decision or show any realistic prospect of success in his intended appeal.

THIS APPLICATION

12.  By a summons and a supporting affirmation taken out on 8 February 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In his summons, the applicant did not give any reason for his delay or any ground of review.  In his supporting affirmation, the applicant alleged that he did not have any income or legal assistance. Given his financial situation he could not file his appeal on time.

13.  Pursuant to the directions of the Registrar of Civil Appeals dated 8 February 2023, the applicant lodged his written submissions on 22 February 2023.  In those submissions, the applicant complained that he was not provided with legal and language assistance and that there had been procedural unfairness in the decisions reached.

DISCUSSION

14.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

17.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

18.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

19.  At the outset, the applicant’s delay of almost three months is substantial and inordinate.

20.  There is also no merit in the applicant’s complaint as to the lack of legal representation or language assistance. Insofar as this complaint relates to his appeal to the Board, he did not raise this ground in his application for leave to apply for judicial review, and should not be permitted to raise this new ground for the first time in the Court of Appeal.  See: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Insofar as this complaint relates to his application for leave to apply for judicial review or the present appeal, there is no legal basis for any contention that he was or is entitled to legal representation at either stage of the proceedings.  See: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17; and Re Lopchan Subash[2018] HKCA 37.

21.  Furthermore, all the Court documents filed and lodged by the applicant are written in English.  In the premises, it is clear that either the applicant is himself conversant with the English language or he has access to language assistance of his own if he finds it necessary.  There is therefore nothing in the complaint in relation to his lack of language assistance.

22.  In any event, his intended appeal is devoid of merit.  The applicant’s complaints against the decisions of the Director and the Board are general allegations without particulars.  No error of law or procedural unfairness or irrationality in the decisions of the Director and Board is shown in the present case.

23.  The applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.

24.  There is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

25.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 8 February 2023 is dismissed.