RE TUFAIL USMAN

CAMP 50/2019

[2019] HKCA 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 50 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 326 OF 2018)

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J U D G M E N T

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

Introduction

1.  By a decision dated 26 September 2018 (“the Decision”), Campbell-Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 28 February 2018. 

2.  On 28 February 2019, the Judge refused to grant an extension of time to the applicant to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews the application for an extension of time to appeal against the Decision to this Court by way of a summons dated 27 March 2019.  Pursuant to the directions of the Registrar of Civil Appeals given on 1 April 2019, the applicant lodged his written submissions on 17 April 2019.  The Registrar further directed that it is for this Court to decide whether to determine the application on paper.  We consider it appropriate to determine this application on paper and we do so accordingly.

Background

4.  The applicant is a national of Pakistan.  He entered Mainland China illegally on or about 6 November 2010 and then entered Hong Kong illegally.  He was arrested by the police for illegal remaining on 18 November 2010.  He was transferred to the Immigration Department on 20 November 2010.  He made a torture claim for the BOR 3 risk, which was rejected on 9 March 2012.  The Applicant thereafter submitted non‑refoulement (“NRF”) claims by way of written representation on 26 and 28 August 2014.  He was released upon recognisance on 15 October 2014.  His supplementary NRF claim form was submitted on 7 June 2016. The applicant’s claim was based on his alleged fear that if he were to return to Pakistan, he would be harmed or even killed by Mr. Sajjad Butt (“SB”) and his people from the Pakistan Muslim League – Q (“PML-Q”) because he did not return the money paid by SB over a land transaction to the applicant.

5.  By a Notice of Decision dated 31 October 2016, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk, the BOR 3 risk, the persecution risk, and the torture risk. 

6. The applicant appealed to the Board. After the hearing on 3 January 2018, the Board dismissed the appeal on 28 February 2018 (“the Board’s Decision”). The Board found that the applicant’s claim regarding the land dispute with SB implausible and inconsistent with his own evidence. The Board also found a lack of credible evidence provided by the applicant in relation to the background information, his employment in Pakistan and his alleged adduction by SB. The applicant’s non-refoulement claim was not substantiated on all applicable grounds.

The Judge’s Decision

7.  On 2 March 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation filed on the same day, he did not provide any grounds of review and merely stated that “my life is still in danger in my home country.  My enemies are still looking for me.”

8.  On 26 September 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [13] – [14] for her refusal to grant leave:

“ Conclusion

13. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers 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 the 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.

14. 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.”

9.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 10 October 2018).  By the summons filed on 28 February 2019, he sought an extension of time to appeal against the Decision.  He stated in the summons that:

“Appeal are the order of High Court Judge Madam Justice Campbell-Moffat was unfair and wrong. The application has a realistic prospect of success. There is an arguable case.”

10.  The applicant did not file any affirmation in support.  At the hearing, he claimed that he did receive the court order on time, however, he did not know what to do and need to seek advice from his friend.  He accepted that his purpose of seeking judicial review was to have his claim re-heard.  After the Judge explained that the nature of judicial review to the applicant, he did not advance any complaint nor grounds of appeal against the Decision.

11.  By the Leave Decision, the Judge found no merit in the underlying intended appeal.  There were no grounds of review against the Board’s decision nor any grounds of appeal against the Decision.  Further, the applicant had fairly admitted that all he sought was a re-hearing of his claim which was not the purpose of proceedings for judicial review.  Having considered all the evidence, the Judge found no prospect of success in the applicant’s intended appeal and refused the application for an extension of time to appeal, see [6] – [7] of the Leave Decision.

The Renew Application

12.  By the summons dated 27 March 2019, the applicant renewed the matter before us.  In the supporting affirmation and his written submissions, the applicant complained that he was deprived of the opportunity to understand the judgments and to make proper grounds of appeal. He sought a re-hearing of his claim as it was determined unfairly.  He contended that the Judge had jumped into conclusions that the applicant had no complaint against the Decision.

Legal Principles

13.  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.

14.  Even if the court does not accept that the applicant’s explanation for the 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. 

15.  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 in 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, the salient principles are as follows:

(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

16.  In this case, the delay of more than four months in taking out the application for an extension of time for leave to apply for judicial review is substantial and the applicant did not offer any explanation for the delay.  Therefore, the applicant must satisfy us that the intended appeal has a real prospect of success before extension of time will be granted: see Re Ansar Muhammad [2018] HKCA 227. 

17.  In the present case, the Board dismissed the applicant’s case by finding no credence on the applicant’s evidence and none of the grounds for non-refoulement protection claim was substantiated.  Assessment of the risk of harm are within the province of the Board.  The Court will not interfere with such assessment unless they are reversible on public law grounds.  The Judge, after rigorous examination and anxious scrutiny, had rightly found that the Board had provided a reasonable opportunity to the applicant to state his case and it had duly considered and enquired into case appropriately.  It was perfectly open for the Board to reach its decision which was eminently reasonable.  We take the view that the Judge was plainly right in rejecting the applicant’s application.  

18.  Further, the complaints laid down in the summons are general and without basis.  The applicant had provided no grounds of appeal for the present application nor did he pinpoint any errors in the Decision and the Leave Decision for this Court to reverse the Judge’s decisions.

19.  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.  The summons dated 27 March 2019 is dismissed accordingly.

20.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.