RE AFGHAN ABDUL QADAR

CAMP 44/2019

[2019] HKCA 862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 44 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 101 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  By a decision dated 28 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 decision of the Torture Claims Appeal Board (“the Board”) dated 29 December 2017. 

2.  On 15 March 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 26 March 2019.  Pursuant to the directions of the Registrar of Civil Appeals given on 27 March 2019, the applicant filed his written submissions on 10 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 Afghanistan.  He entered Hong Kong illegally by boat on 12 May 2015 and was arrested by the police on 15 January 2016.  He was transferred to the Immigration Department on the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 18 January 2016.  He was released upon recognisance on 17 February 2016.  His NRF claim form was submitted on 16 March 2016. The applicant’s claim was based on his alleged fear that if he were to return to Afghanistan, he would be harmed or even killed by the members of Taliban at the mountain because he was accused to be a spy of the Afghan army and he refused to join the Taliban.

5.  By a Notice of Decision dated 17 May 2016, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 10 February 2017, the Director rejected the applicant’s claim on the BOR 2 risk.

6. The applicant appealed to the Board. After the hearing on 1 March 2017, the Board dismissed the appeal on 29 December 2017 (“the Board’s Decision”). The Board found that the applicant’s account was riddled with inconsistencies and deficiencies and he was found to be an untruthful witness. The Board did not accept that the applicant was targeted or abducted by the Taliban nor that he came to Hong Kong due to fear for his life and safety. His delay in making the claim was wholly inconsistent with someone who was in genuine and imminent fear for his life and safety and the Board considered that the applicant was more consistent with an opportunistic exploitation of the non-refoulement protection scheme. The applicant was found to have failed to prove his account of the past and existing facts even on the lower standard of real risk or reasonable degree of likelihood. There was no factual basis to support any of the applicable grounds. 

The Judge’s Decision

7.  On 22 January 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 reiterated his fear for the risk of life if refouled to his home town as the Taliban group had been carrying out various attacks in his country from September 2017 to January 2018 as reported in the news.

8.  On 28 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 [11] – [12] for her refusal to grant leave:

“ Conclusion

11. 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.

12.  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 12 October 2018).  By the summons filed on 15 October 2018, he sought an extension of time to appeal against the Decision.  In his supporting affirmation, he explained that he did not receive a copy of the Decision and he was only informed of the dismissal of his application for leave to apply for judicial review when reporting recognizance with the Immigration Department.  He informed the court on 12 October 2018 of his new address and he also attended his previous address to check for court letters but he found none.

10.  By the Leave Decision, the Judge refused to grant an extension of time.  Notwithstanding the minimum delay on the part of the applicant, the Judge had considered the underlying application and found no merit in the applicant’s case.  Further, the applicant failed to provide any grounds of his intended challenge in Form 86 nor any grounds of appeal against the Decision of the Judge and it would not be in the interest of justice to grant an extension of time in all the circumstances of the case, see [8] of the Leave Decision.

The Renew Application

11.  By the summons dated 26 March 2019, the applicant renewed the matter before us.  In the summons, the applicant stated that he was not satisfied with the Director’s decisions and he was unsafe in his home country.  In his written submissions, he reiterated that his home country was not safe and the court may see the news to understand the situation of his country. 

Legal Principles

12.  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.

13.  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. 

14.  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

15.  We take the same view as the Judge did that despite the small delay in taking out the summons for an extension of time, we would not grant an extension of time because of the lack of merit of the applicant’s case.  We have reviewed the Board’s decision and noted that the applicant’s case was rejected on issue of credibility and lack of factual basis to support any of the applicable grounds.  It was open for the Board to come to its findings and conclusion and we find no errors of law or procedural unfairness or irrationality in the decision of the Board.  The applicant had also failed to advance any or any viable grounds of appeal in the summons and in his written submissions to challenge the Judge’s decisions for the present application. 

16.  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 26 March 2019 is dismissed accordingly.

17.  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.