RE SHAHZAD ADNAN

CAMP 402/2022, [2023] HKCA 1129

On Appeal From [2022] HKCFI 418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 402 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 253 OF 2019)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 10 February 2022, DHCJ To (“the Judge”)  refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim and dismissed his leave application (“the JR Decision”). Under Order 53 r.3(4)  of the Rules of the High Court (Cap. 4A)  (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 10 May 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 28 July 2022.

3.  On 3 October 2022, the applicant filed his summons in CAMP 402/2022 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 3 October 2022, the applicant should lodge his written submissions in support of the Summons on or before 17 October 2022.  However, he failed to do so.  He only lodged his written submissions on 28 October 2022 without any explanation for his delay.

5.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.  In the absence of any good reason for the delay in lodging the written submissions, we have not taken them into consideration.

6.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

7.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 6 December 2007 and was arrested on 9 December 2007.  On 22 December 2007, he raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was later taken as non-refoulement claim, alleging that if refouled, he would be harmed or even killed by the brothers of a person called Riaz as he and his friends were involved in fights with Riaz in 2006 over his cousin who Riaz had teased, and his brother had later murdered Riaz in 2013.  The factual background of this case was succinctly summarised by the Judge at [4] – [12] of the JR Decision ([2022] HKCFI 418).

8.  By a Notice of Decision dated 2 February 2015 and a Notice of Further Decision dated 1 August 2017 (relating to the BOR2 risk), the Director of Immigration (“the Director”)  decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], torture risk[3] and the persecution risk[4].

9.  The applicant appealed the Director’s decisions to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  and attended oral hearings on 7 April 2016 and 30 November 2018.  By its decision dated 22 January 2019, the Board dismissed the appeal.  For the reasons set out at [21] to [34], the Board found that the applicant’s evidence was inconsistent and evasive and he avoided answering questions.  The Board had serious doubts about the truthfulness of his account. Even on the applicant’s own evidence, it was clear that on all occasions it was the applicant’s party who sought Riaz out for attack and the only action taken by Riaz’s group was to report the matter to the police.  Despite the applicant’s claims that he was the subject of complaints as a result of the fights and that the complaints were supported by documents, none were forthcoming at his hearings before the Board in April 2016 and August 2017.  Regarding the applicant’s claim that his brother killed Riaz in 2013 some 6 years after he left Pakistan, the Board did not consider that the applicant would be implicated in the killing.  For the aforesaid reasons, the Board found that the applicant had failed to establish his case on all applicable grounds.

Application for leave to start judicial review

10.  On 28 January 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  In his supporting affirmation, he said he wanted to appeal the Director’s decisions but he did not put forward any grounds for relief.

The JR Decision

11.  The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [20] - [21] of the JR Decision:

“20. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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 court will scrutinize 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[5].

21.  Having rigorously examined the Director’s two Notices of Decision and the Board’s Decision with anxious scrutiny, the Court was satisfied that the Board had correctly set out the four applicable grounds under the USM for claiming non-refoulement protection, had properly referred to and correctly applied the applicable legal principles, including  the standard of proof and burden of proof, and quoted relevant precedents in support of its decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notices.  It correctly identified the factual and legal issues involved in the claims. The Applicant’s claims are founded on his fear of reprisal by Riaz’s family members and police arising from the three assaults and Riaz’s subsequent murder.  The Decision of the Board was based on its finding of the Applicant’s credibility.  The Board had carefully weighed the evidence and assessed his credibility, but found against him.  The Board found him incredible and did not accept his evidence about his fear of reprisal and his assertions of risks. The Board found that his fear of reprisal not well-founded.  It was on that basis that the Board found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  This conclusion was further supported by availability of internal relocation.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.”

Application for extension of time to appeal the JR Decision

12.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 10 May 2022 for an extension of time to appeal.  That was dismissed by the Judge on 28 July 2022.  Hence, the Summons to this court.

Discussion

13.  In considering whether to extend time for appeal, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3) the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

14.  As for (1), the applicant was late by more than 10 weeks between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  Even deducting the General Adjournment Period of the court between 7 March 2022 and 11 April 2022, his delay was still substantial.

15.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he received the JR Decision late but there was no further explanation.  To provide an opportunity to the applicant to present a proper case for extension of time, the court directed him by letter dated 24 May 2022 to file a statement within 14 days stating the date and circumstances when the court documents were received or brought to his attention and the grounds of his intended appeal.  However, he failed to respond.  In the absence of any details or evidence to corroborate his bare assertion that he received the JR Decision late, there is no valid reason for the delay.

16.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  Despite the court’s specific request, the applicant did not provide any valid grounds of appeal to challenge the Board’s decision nor did he pinpoint any error in the JR Decision. 

17.  It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility as his evidence was evasive, inconsistent and implausible.  Even on his account of events, he and his family members were the ones who sought Riaz out for attack, and as Riaz was allegedly killed by the applicant’s brother 6 years after the applicant had left his home country, the Board did not find that the applicant would be subject to any real risk of harm if refouled.  These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds.  We see none in this case.

18.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

19.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 3 October 2022.