RE MD YAZDANI

CAMP 396/2021

[2022] HKCA 432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 396 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 958/2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Campbell-Moffat J (“the Judge”)  dated 4 December 2018 refusing 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/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 1 September 2017 (“the Board’s Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 16 May 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of India.  He entered Hong Kong on 21 November 2013 and was permitted to remain as a visitor until 23 November 2013.  In the ensuing years, he overstayed and was convicted of various offences including theft and assault occasioning actual bodily harm.  He was discharged from prison on 8 March 2017 and transferred to the Immigration Department.  The applicant had, prior to his release from prison, lodged a non-refoulement claim on 10 December 2014.

3.  The applicant’s claim was based on a fear of being harmed or killed by members of an opposing political group.  The details of the applicant’s claim have been summarised by the Judge at [5] to [7] of her decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 16 May 2017, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 14 August 2017, the Board dismissed the appeal on 1 September 2017.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board rejected the applicant’s case, which it did not find to be credible or established on the evidence before it.

The Judge’s decision

6.  The applicant filed a Form 86 on 27 November 2017 seeking to judicially review the Board’s Decision without setting out any grounds of review.  In his supporting affirmation, he simply stated that the Board’s Decision was “not fair and unreasonable”.

7.  After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [15] of the CALL-1 Form:

“12.   Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

13.  This is an appeal against the Adjudicator alone.  There were no proper grounds of review.  The Applicant states the decision was unfair and unreasonable.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007)  10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground.

Conclusion

14.  Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully.  It is clear that the Adjudicator went into meticulous detail as to how and why she disbelieved the Applicant and he is aggrieved by this.  He was found out in his lies and he does not like it.  That does not make her decision either unreasonable or unfair.  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 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 her determination, which was open to her on the facts and eminently reasonable.

15.  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.”

The present application for extension of time to appeal

8.  The applicant’s address as stated in his Form 86 was “Castle Peak Bay Immigration Centre”.  On 7 May 2018, the Immigration Department informed the court that the applicant was released on immigration recognizance on 8 February 2018 and his last reported address was at Chun Nam Yuen, Tai Tong Road, New Territories (“the Tai Tong Road Address”)  which appears not to have been his address at all.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Tai Tong Road Address on 4 December 2018.  This letter was not returned undelivered.  In fact, from about July 2018, the applicant was remanded in custody pending trial on a charge of robbery.

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 4 December 2018.

10.  The applicant took out a summons in the Court of First Instance on 21 June 2021 seeking extension of time to appeal.  In his supporting affirmation filed on the same date, he stated that as he was in prison, he did not receive the Judge’s decision and thus missed the deadline for appeal. 

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 2 August 2021[6].

12.  By a summons filed on 20 September 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant stated that he did not have the opportunity to clarify his case before the Judge, and that he did not receive letters from the court because he was “serving sentence”.

13.  In his written submissions dated 28 September 2021, the applicant referred to Secretary for Security v Sakthevel Prabakar [2005] 1  HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1)  that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2)  that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3)  that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

15.  In considering an application for extension of time to bring a judicial review, the court will have regard to: (1)  the length of delay; (2)  the reason for the delay; (3)  the merit of the intended judicial review; and (4)  any prejudice to the putative respondent and to public administration.  See Re Thomas Lai [2014] 6 HKC 1 and AW v Director of Immigration [2016] 2 HKC 393.

16.  The length of delay in the present case is more than two years, which is very substantial. As the Judge noted in her decision dated 2 August 2021 (at [7]), notwithstanding that the applicant was in detention at or around the time the CALL-1 Form was sent to him, and for this reason he may not have received or received it in time, he did not seek to progress his application whilst on remand despite having the services of legal aid throughout the period of his detention.

17.  In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

18.  But even if this court were to accept the applicant’s reason for the delay, it would remain necessary for this court to consider the merits of the intended appeal.

19.  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 role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise 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 [2018] HKCA 524 at [14(1)].

20.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

21.  Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)  & (4)]. 

22.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that she had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

23.  As to the applicant’s complaint that he was unable to clarify his case properly before the Judge, we note that the Judge had in fact given him an opportunity to make full submissions, with the aid of an interpreter, at the hearing of his extension of time application (see [7] of the Judge’s decision dated 2 August 2021).

24.  Turning to the written submissions and the well-established legal principles cited therein, there was no attempt by the applicant to elaborate on how they were misapplied or contravened in the processing of his non-refoulement claim, or to relate them to the circumstances of his case.

25.  For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 20 September 2021 is accordingly dismissed.