RE AHMED ZAKAR

CAMP 17/2019

[2019] HKCA 566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 17 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 708/2017)

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J U D G M E N T

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

Introduction

1.  On 6 July 2018, Campbell-Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 11 July 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) rejecting the applicant’s non-refoulement claim.

2.  On 22 January 2019, the Judge refused to grant leave for the applicant to appeal against the said decision of the Judge out of time.

3.  By a summons dated 31 January 2019, the applicant renewed before this Court for an extension of time to appeal against the Judge’s decision.

Background

4.  The applicant is a national of Pakistan.  He claimed to have entered Hong Kong illegally from the Mainland China on 26 October 2011.  He was arrested by the police on 31 October 2011, and lodged a torture claim on 3 November 2011.  His torture claim was subsequently treated as a non-refoulement claim and was assessed under the unified screening mechanism.

5.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be killed by members of Al Qaeda because he refused to join them.  The factual background was succinctly summarized by the Judge in [4] – [5] of the Form CALL-1 (published as [2018] HKCFI 1175).

6.  By two notices of decision dated 30 July 2015 and 24 October 2016, the Director assessed the applicant’s claim on all applicable grounds and determined the case against him.  The former covered the BOR 3 risk[1], persecution risk[2], and torture risk[3], and latter the BOR 2 risk[4].

7.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 7 July 2017.  The Board considered that, although Al Qaeda was a terrorist group, it was not a state agent.  It was also considered that the injuries suffered by the applicant did not attain the requisite level of severity, and that internal relocation was also a viable option for the applicant.  The Board also found that the applicant lacked credibility due to the fact that the applicant failed to raise his non-refoulement claim at the earliest available opportunity.  The Board dismissed the applicant’s appeal/petition on 11 July 2017 accordingly.

The Judge’s decision

8.  On 22 September 2017, the applicant sought leave from the court to apply for judicial review.  No ground was stated in the Form 86.  In the affirmation in support of the leave application dated 3 October 2017, the applicant simply deposed that he was not satisfied with the decision of the Immigration Department and he could produce further documents to support his claim.

9.  The applicant did not request for any oral hearing.  Having considered the materials, the Judge considered it appropriate to proceed the application on paper.  After summarizing the background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to grant leave for the applicant to apply for judicial review.  Her reasons in refusing leave were set out in [11] – [13] of the Form CALL-1 as follows:

“ Grounds of review

11. There were no grounds of review. The Applicant asks for a re-hearing of his appeal because he maintains he will have documentary proof in the near future. 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. The Applicant has had seven years to prepare his case which was very basic and even at its highest could not have founded a claim under any of the relevant heads. Nevertheless, he was given every opportunity to make his case before both the Director and the Adjudicator and was given the benefit of the doubt for the purposes of assessing the relevant heads of claim.

Conclusion

12. Despite the fact that the Applicant failed to submit any grounds of review, 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.

13. 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 he were to be granted leave.  I therefore refuse leave for judicial review.”

10.  More than 3 months after the Judge’s decision, the applicant applied for leave to appeal against the decision by way of a summons dated 24 October 2018.  In the supporting affirmation of the same date, the applicant stated that he did not receive any judgment or order and was only informed of the result by an immigration officer. 

11.  After having an oral hearing on 22 January 2019, the Judge refused to grant leave for the applicant to appeal out of time.  The Judge found that the applicant’s explanation for the delay was unacceptable.  Since the applicant did not provide any ground to support his application for judicial review, the Judge was not satisfied that the intended appeal had any merits. 

Renewed application for leave to appeal out of time

12.  On 31 January 2019, the applicant took out a summons renewing his application for leave to appeal out of time.  It was stated in the summons that the delay was due to the fact that he did not receive the letter about his case.

13.  The applicant also filed an affirmation on the same date, but the affirmation had no substantive content.

14.  The applicant lodged two sets of written submissions in support of his application.  He simply reiterated therein the factual background of his case.

Legal principles

15.  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.

16.  Even if the court does not accept that the 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. 

17.  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 of 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, we would only highlight the following salient principles:

(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

18.  In the present case, the applicant took more than 3 months to bring an appeal against the Judge’s refusal to grant leave to apply for judicial review.  In our view, this is a substantial delay. 

19.  As we have repeatedly said, it is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay (assuming there was such delay) occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant, see Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017, at [9]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; Re Ahmed Syed Rafiq [2018] HKCA 178 at [19]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].  Accordingly, we agree with the Judge that the delay was inexcusable.

20.  Most importantly, we are of the firm view that the intended appeal is devoid of any merits.  Having assessed the available evidence, the Board found that the applicant failed to establish any substantial risk of harm or any substantial basis of fear if he returned to Pakistan.  It also held that internal relocation was a viable option for him.  As explained, these assessments are within the province of the Board and the Court will not interfere with them unless there were errors on public law grounds.  Having considered the papers, the applicant’s grounds and submissions with care, the Judge did not find any error in the Board’s decision. 

21.  The repetition of the factual background of the case does not constitute a valid ground of appeal. In this appeal, the applicant fails to pinpoint any error in the Judge’s decision.  After perusing the materials before us, we cannot find any either.

22.  Accordingly, we agree with the Judge’s observations.  We agree that leave should not be granted to the applicant to apply for judicial review.

23.  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

24.  The summons dated 31 January 2019 is dismissed accordingly.

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