RE SULTAN ZAHID

CAMP 255/2019

[2020] HKCA 473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 255 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 41 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 summons filed on 11 October 2019, the applicant applied for permission to process his case further.  We take it to mean that he is seeking permission to appeal against the decision of Campbell-Moffat J (“the Judge”) given on 24 April 2019 refusing to give him leave to apply for judicial review. 

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 22 December 2017, in which the Board confirmed the decision made by the Director of Immigration (“the Director”) dated 29 June 2017.  By the Decision of the Judge dated 24 April 2019 (“the Decision”), the applicant’s application for leave for judicial review against the Board’s decision was dismissed.  The applicant’s application to extend time to appeal against the Decision was rejected by the Judge on 25 September 2019.

3.  The applicant now renews his leave application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 14 October 2019, the applicant lodged his written submission on 29 October 2019. 

4.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 1 July 2013 from Mainland China and was arrested by the police on the same day.  He made a torture claim on 4 July 2013 and submitted his Torture Claim Form (“TCF”) on 23 September 2013.  That claim was rejected on 17 January 2014.  He submitted a non-refoulement (“NRF”) claim by way of written representation on 27 January 2014 and his claim was considered under the Unified Screening Mechanism (“USM”) on all other grounds (including BOR 2) save for torture claim.  His Supplementary Claim Form (“SCF”) in respect of the USM grounds was submitted on 13 June 2017.  

6.  The background facts were sufficiently set out by the Judge in [4] of the Decision.  In gist, his claim was based upon his fear that if he returned to Pakistan, he will be subjected to torture or even killed by his cousin Mr. Khan Nawaz (“KN”), who was an active member of the Jamate Islami Party (“JIP”), for his failure to repay the loan owed to KN.

7.  The applicant attended screening interviews on 11 December 2013 and 9 January 2014 in respect of his TCF and on 27 June 2017 in respect of his SCF.  By Notice of Decision of 17 January 2014, the Director dismissed the applicant’s torture claim.  By the Notice of Decision of 29 June 2017, the Director dismissed the applicant’s claims on BOR 2 risk, BOR 3 risk and persecution risk.

8.  The applicant appealed to the Board against the Director’s decision of 29 June 2017.  After the hearing on 3 November 2017, the Board dismissed the appeal on 22 December 2017.  For the reasons and analysis stated in [20] to [25] of the Board’s decision, the Board found that the applicant’s story was illogical and inconsistent that made his case unreliable and unacceptable.  The Board formed the view that his purpose of coming to Hong Kong was to seek employment rather than seeking non-refoulement protection especially when considering the fact that on 12 July 2016, he was arrested by police for taking employment while he was subject to a removal order.  For the aforesaid reasons, his case was rejected on all applicable grounds.

9.  On 9 January 2018, the applicant filed Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decision.  He did not provide any ground for his intended challenge other than saying that his life would be in danger if he were to return to his home country as his problem still existed.  He urged the court to review the decisions of the Director and the Board and to save his life.

The Judge’s Decision

10.  The applicant did not request an oral hearing and the Judge considered the application on paper.  By the Decision dated 24 April 2019, the Judge refused leave for the applicant to apply for judicial review after due consideration of the Director’s and Board’s decisions.  The reasons were duly set out at [11] to [12] of the Decision:

“11. 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 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 his determination, which was open to him 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.”

11.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appeal (which expired on 8 May 2019).  By the summons filed on 15 August 2019, he sought an extension of time to appeal against the Decision.  In the summons and his supporting affirmation, he did not provide any draft or proposed grounds of his intended appeal. He merely mentioned that he did not receive any court letter and he only learnt about the dismissal of his case from the officer of the Immigration Department.

12.  By the decision dated 25 September 2019, the Judge refused to grant an extension of time.  On the issue of delay, the Judge noted that the Decision was sent to the address of the applicant stated in the Form 86 but it was returned undelivered.  The applicant explained that he had changed his address.  The Judge took the view that it was entirely the applicant’s responsibility to give the court an address to which correspondence or documents sent to him could reach him in a timely manner, see Re Ahmed Zakar CAMP 17/2019, [2019] HKCA 566.  The Judge further said that even if the court accepted his explanation for the delay, the court is still required to examine whether there is any merit in the applicant’s appeal.  The applicant had failed to provide any ground of review and none could be ascertained from the papers.  The Judge found no merit in his underlying application and there was no real prospect of success in the applicant’s intended appeal.  The summons was dismissed accordingly.

The Renew Application

13.  By the summons dated 11 October 2019, the applicant renewed the matter before us.  In his supporting affirmation, he merely said that he was late in his appeal against the Decision due to his misplacement of the court letter. 

14.  In his written submissions, he set out the following grounds of appeal:

(1)  His enemies were powerful and he was helpless. His life would be in danger if he were to return to Pakistan.  He hopes to stay in Hong Kong until his problem is solved.

(2)  He is not satisfied with the decision as it is not fair and does not reflect the real situation in his country where only rich and powerful people can survive.

(3)  The Pakistani police only stand with those people who have political backup and manpower. 

(4)  His enemies can trace him anywhere due to their unlimited resources and he cannot hide from them.

(5)  He delayed his application because he did not receive the court letter about his case.  He hopes that the court can allow his case to proceed further.

15.  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.

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

17.  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

18.  We are of the view that the delay of almost 3 months in taking out the summons for an extension of time to appeal against the Decision was substantial.  We agree with the Judge that the applicant’s explanation of delay was not satisfactory.

19.  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.  

20.  We found no merit in the applicant’s case as none of the grounds of appeal set out in his supporting affirmation and written submissions pinpoints any error of law of the Judge’s decision.  They are not viable grounds of appeal.  

21.  Further, the applicant’s case was rejected by the Board on the issue of credibility that his case was found to be illogical and inconsistent.  The Board also did not found KN and his men could have influence and the resources over the whole country to locate the applicant.  As a matter of fact, the applicant had moved from his home town to Rawalpindi for two months before he left Pakistan without encountering any problem, see [40] of the Board’s decision.   The applicant’s complaints simply cannot stand.

22.  We have carefully reviewed the Board’s decision and take the view that the decision was without error of law or procedural unfairness or irregularities.  There is no proper basis to found a claim for judicial review.  

23.  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. 

Conclusion

24.  The summons dated 11 October 2019 is dismissed accordingly.

25.  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.