RE SHAH ZAHID

CAMP 107/2022

[2022] HKCA 695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 107 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 137 OF 2019)

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J U D G M E N T

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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 P Li (“the Judge”) dated 23 November 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation. He has lodged a written submission on 5 May 2022, which was one week after the time prescribed by the Registrar of Civil Appeals had expired.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Pakistan aged 29. He entered Hong Kong illegally and was arrested by the police on 20 February 2016. He later lodged a non-refoulement claim based on his fear of being harmed or killed by his fellow villagers and also members of Taliban because they suspected he had converted to Christianity as he had been seen near a church together with his friend who was a Christian. The details of the applicant’s claim were set out in the decision of the Director at [7]. We will not repeat them.

5.  By a notice of decision sent to the applicant dated 3 November 2017[2], the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[3], BOR 3 risk[4], persecution risk[5] and BOR 2 risk[6] grounds.

6.  The applicant appealed the decision to the Torture Claims Appeal Board (“the Board”). The Board heard the appeal on 8 October 2018[7], during which the applicant gave evidence and answered questions from the Board. By its decision dated 6 December 2018, the Board dismissed the appeal. In summary, the Board considered the applicant not a witness of truth having regard to the gaps, inconsistencies and problems in his evidence. The Board found he had fabricated claims in relation to having a friend who was a Christian, and rejected his claim in its entirety. The Board found he was not at risk of any of the prescribed forms of harm and concluded that he failed to establish entitlement to non-refoulement protection under any of the applicable grounds.

7.  On 14 January 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review both the Director’s and the Board’s decisions. The applicant’s grounds for seeking relief as stated in his affirmation may be summarised as follows:

(1)  The applicant was tortured and had suffered as a result of misconduct and/or collusion of the police, state enforcement agencies and people with high political status.

(2)  The Director failed to consider the above, and also failed to appreciate or give proper weight to state acquiescence.

(3)  The Director was selective in his approach to the relevant country of origin information (“COI”), and failed to have regard to information that favoured and supported the applicant’s case.

(4)  The Director failed to adhere to the high standard of fairness.

(5)  The Board failed to make sufficient enquiries before finalising its determination. It also failed to give the applicant sufficient chance to arrange relevant evidence.

8.  The Judge listed the application for hearing on 13 September 2021, but the applicant did not attend. The Judge proceeded to deal with the application on the papers. By a Form CALL-1 dated 23 November 2021, the Judge dismissed the application. Principally, the Judge held that the Director’s decision was not susceptible to judicial review given that the applicant had appealed to the Board and the Board’s decision had superseded the Director’s decision. As to the Board’s decision, the Judge had regard to the fact that the Board had twice rescheduled the appeal, such that the applicant ought to have ample time to prepare his case for the appeal. The Judge also considered the Board had pointed out fundamental problems and inconsistencies to the applicant at the hearing and afforded him full opportunity to respond. The Judge held that the Board was entitled to come to its view on the credibility of the applicant’s evidence and claim, and no error of law, irrationality or procedural irregularity could be discerned in the Board’s decision.

9.  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 decision within 14 days after it was made. The time for the applicant to appeal the Judge’s decision expired on 7 December 2021.

10.  By a summons filed on 3 January 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper and, by his decision handed down on 24 February 2022[8] refused the application.

11.  On 14 April 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

12.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (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.

13.  The applicant was late by nearly four weeks, which is not an insubstantial delay. He explained in the summons that he did not receive the judgment, but provided no elaborations. We note that the address he gave in the summons filed on 3 January 2022 is different from that stated in his Form 86, to which the Form CALL-1 and the Court order were sent. This suggests that the applicant had changed his address but failed to inform the Court. As it is his responsibility to update the Court of changes in his address, we are not satisfied that the applicant has satisfactorily explained the delay. In the circumstances, the applicant must show that his intended appeal has a real prospect of success.

14.  In assessing 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].

15.  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.

16.  In the summons and affirmation filed in the present application, the applicant only asked that the time for appealing be extended, but did not provide any ground in support of his intended appeal. He has not identified any error in the Judge’s decision.

17.  In his written submission, the applicant stated that he had no way to return to his home country, but neither the Director nor the Board believed him. He also stated that he found many errors but the Court did not find any, so he requested to be given leave to appeal so that his points could be checked. The applicant has not, however, specified what were the errors committed by the Board that were missed by the Judge. The general and un-particularised assertions cannot amount to viable grounds of appeal.

18.  We have separately considered the Judge’s and the Board’s decisions. Assessment of credibility and risks of harm are matters for the Board, who is the primary decision maker. In this case, the Board rejected the applicant’s evidence and in its entirety. We agree with the Judge that the Board had made detailed analysis of the applicant’s evidence and given clear, cogent reasons for finding against the applicant on the credibility of his evidence. In the application for leave to apply for judicial review, the applicant had not provided any arguable ground to challenge the Board’s assessment and findings. In view of the Board’s rejection of his claims, his complaints about the use of COI are irrelevant. The Judge had also correctly rejected his complaint of not having adequate opportunity to adduce supporting evidence. We do not discern any viable ground to disturb the Board’s decision. We agree that the intended judicial review has no prospect of success and the Judge was correct in refusing to give leave to apply for judicial review.

19.  As the applicant’s intended appeal against the Judge’s refusal of the application for 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 applicant’s summons filed on 14 April 2022.