RE MOHAMMAD NASIM AKHTAR

CAMP 395/2021

[2021] HKCA 1863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 395 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2725 OF 2018)

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JUDGMENT

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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 Lung (“the Judge”) dated 3 June 2021 dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and also lodged a written submission in support of his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time 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’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) rejecting her non-refoulement claim.

5.  The applicant is an Indian national aged 46. He entered Hong Kong on 9 October 2006 with permission to remain as a visitor for 14 days. He overstayed and was arrested by the police on 21 March 2009. He made a torture claim, which was rejected by the Director on 26 October 2012. On 4 January 2013, he raised a non-refoulement claim based on fear of being harmed or killed by his two creditors because he was unable to repay his debts. The details of the applicant’s claim were set out in the Director’s decision at [9]. We will not repeat them.

6.  By his decision dated 26 February 2018, the Director rejected the applicant’s claim having regard to BOR 3 risk[1], persecution risk[2] and the BOR 2 risk[3] grounds. No assessment was made on the torture risk[4] ground in view of the previous rejection of the torture claim.

7.  The applicant’s appeal to the Board against the Director’s decision was heard on 14 September 2018. By its decision dated 26 November 2018, the Board dismissed the appeal. The Board afforded the applicant the benefit of the doubt, and accepted for the purpose of the appeal that his claimed account of events was based on actual events and fact.

8.  The Board accepted that the applicant: (i) was subjected to abuse, insult, intimidation, harassment, assault and threat by his two creditors in their attempt to recover the debts; (ii) had reported to the police who demanded money from him before they would investigate his claims; and (iii) overstayed in Hong Kong for fear of being harmed by his creditors. It also accepted that after his departure, the applicant’s family had been subject to harassment from the creditors and had to relocate to other area to avoid them. The Board, however, concluded that the three applicable grounds did not apply because: (i) while there was a small but nonetheless real risk that the applicant would suffer mistreatment, there were reasonable relocation options available to him, hence there are no substantial grounds to believe there is a real risk of the applicant being subjected to ill treatment that comes within the BOR 3 risk ground; (ii) on the evidence as a whole, it does not establish that the applicant has a well-founded fear of persecution for the persecution risk ground to apply; and (iii) there are no substantial grounds to believe the applicant faces a real risk of being arbitrarily deprived of his life that entitles him to protection under the BOR 2 risk ground.

9.  On 3 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. Other than stating in his supporting affirmation that he could not go back to his home country because it was unsafe, the applicant did not provide any ground for seeking relief.

10.  The Judge dealt with the application on the papers. By a Form CALL-1 dated 3 June 2021[5], the Judge refused the application for leave to apply for judicial review. The Judge’s principal reason was that the intended judicial review had no reasonable prospect of success, as there was no error of law or procedural unfairness in the Board’s findings and decision.

11.  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 order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 17 June 2021.

12.  By a summons filed on 25 August 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on the papers and refused the application by a decision handed down on 9 September 2021[6].

13.  On 20 September 2021, the applicant filed the present summons together with an affirmation to make a further application to this Court for extension of time to appeal.

14.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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.

15.  The applicant was late by more than two months when he filed the 25 August 2021 summons. The delay is not insubstantial. Both before the Judge and in the present application, the applicant explained that he did not receive the Court’s decision and order in time and that he lacked the appropriate means to make an appeal. We note that the address stated on the summons and affirmation for extension of time to appeal is different from that stated in the Form 86, which was where the Form CALL-1 and order were sent. The applicant had not informed the court of his change of address. While we are prepared to accept that the applicant received the Judge’s decision and order late, the cause and fault for the delay lies with the applicant.

16.  We turn next to consider the merit of the intended appeal. In this regard, 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].

17.  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.

18.  In the present application, the applicant stated in his affirmation that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his country.

19.  The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and referred to decisions on Wednesbury unreasonableness and also section 37ZT of the Immigration Ordinance which concerns the late filing of notice of appeal to the Board. It submitted that: (1) the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim; (2) the Board acted in a procedurally unfair manner in dealing with the applicant’s case and did not properly assess his credibility.

20.  In our view, the matters put forward in the affirmation and the written submission did not contain arguable grounds of appeal against the Judge’s decision. Firstly, as the applicant did not request for an oral hearing in his Form 86 or supporting affirmation, the Judge was entitled under Order 53 rule 3(3) of the Rules of the High Court to determine his application on the papers without an oral hearing. Importantly too, the applicant has not indicated what further matters he wished to, but could not, put before the Judge because there had been no hearing. Secondly, it was not shown how the legal propositions quoted in the written submission relate to the applicant’s case. The reference to section 37ZT of the Immigration Ordinance is irrelevant since the applicant was not late in his appeal to the Board. Thirdly, the complaints about the Board’s approach have no basis at all. It is clear from the Board’s decision that it did not find against the applicant on credibility; it had in fact accepted the applicant’s case and the facts underlying his claim.

21.  We have in any event examined the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision. The Judge was correct in finding the intended judicial review has no reasonable prospect of success and refusing to extend the time to apply for judicial review.

22.  As the applicant’s intended appeal against the Judge’s refusal of 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 summons filed on 20 September 2021.