RE AHMED ADIL

CAMP 31/2021

[2021] HKCA 914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 31 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 273 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 Bruno Chan (“the Judge”) dated 2 July 2020 refusing his application for leave to apply for judicial review.

2.  The applicant had 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 leave to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, 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”) dated 9 February 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 10 March 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of India aged 37.  He entered Hong Kong on 13 January 2015 and was given permission to remain for 14 days as a visitor.  He overstayed.  On 2 February 2015, he surrendered himself to the Immigration Department, and later raised a non-refoulement claim. 

6.  The applicant’s claim is based on his fear of being harmed or killed by his former business partner called Wasim over a financial dispute and also because they belong to different political party and different Muslim organisations.  The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarised by the Judge in the Form CALL-1 dated 2 July 2020[1] at [2] to [5].  We will not repeat them.     

7.  By his decision dated 10 March 2017, the Director rejected the applicant’s claim on the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] grounds.

8.  The applicant’s appeal to the Board was heard on 8 December 2017.  By its decision dated 9 February 2018, the Board dismissed the appeal.  Primarily, the Board considered the applicant’s credibility was adversely affected by the fundamental inconsistencies between his evidence before the Board and what he stated in the non-refoulement claim form.  The Board found the unpaid debt owed by the applicant is the only reason for Wasim to pursue him, and there is no political dimension to the dispute between them.  The Board also found that the applicant does not face any threat of being killed by Wasim, and that any threat would be negated by the reasonably available internal relocation options.  The Board concluded that the applicant failed to show he was entitled to non-refoulement protection on any of the appliable grounds.

9.  On 21 February 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The applicant had not put forward any ground for seeking relief.  

10.  By the Form CALL-1 dated 2 July 2020, the Judge refused to give leave to apply for judicial review and dismissed the application.  The Judge observed that both the Director and the Board had found that even if his claim was to be accepted, the risk of harm was a localised one.  The Judge did not find any error of law or procedural irregularity in the Board’s decision, and concluded that the applicant’s intended judicial review had no reasonable prospect of success.   

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 time for the applicant to appeal the Judge’s decision expired on 16 July 2020.   

12.  By a summons filed on 11 September 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 25 November 2020, and by his decision handed down on 14 January 2021[6] refused the application. On 25 January 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

13.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.  The applicant was late by eight weeks, which is a significant delay.  Both in the application to the Judge and in this application, the applicant did not offer any explanation for his delay. In the circumstances, the applicant has to show that his intended appeal has a real prospect of success. 

15.  In assessing the merit of the intended appeal, the court 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].

16.  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.

17.  In the present application, the applicant stated in his summons that the Judge failed to consider grounds of risk of violation of articles 2 and 22 of the Hong Kong Bill of Rights Ordinance, Cap. 383.  In his supporting affirmation, he also stated that he would face hardship if he were to return to his country because his life would be in danger.  His written submission quoted passages from cases on the high standards of fairness and Wednesbury unreasonableness.  He argued that as the decision has the effect of finally disposing of his case, the high standards of fairness should apply.  He also complained that the Board acted in a procedurally unfair manner without properly assessing his credibility.    leave. 

18.  For the reasons stated below, we are of the view that none of the matters put forward by the applicant amount to arguable grounds of appeal: 

(1)  Assessment of risk of credibility and risks of harm is a matter for the Director and the Board, who are the primary decision maker.  It is not the function of the Judge.  The complaint that the Judge failed to consider the applicant’s claim under the applicable grounds is therefore misplaced. 

(2)  As the Judge pointed out, both the Director and the Board had found that any risk faced by the applicant is a localised one.  His assertion that his life would be in danger if he were to return to his country has no supporting basis. 

(3)  The written submission only contains broad legal principles.  It has not been shown how they relate to the applicant’s case.  Likewise, there are no particulars to support the assertion that the Board acted unfairly.

(4)  The applicant had provided no ground for seeking relief in his application for leave to apply judicial review.  Since the Judge did not find any legal error, irrationality or procedural irregularities in the Board’s decision, the intended judicial review application had no prospect of success.  The Judge was right in refusing to give leave to apply for judicial review and dismissing the application.       

19.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 25 January 2021.