MAHMOOD WAJID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 86/2020

[2021] HKCA 71

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 86 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1778 OF 2018)

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J U D G M E N T

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

1.  On 20 June 2019, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim^[1].

2.  The applicant filed a summons on 7 November 2019 seeking extension of time to appeal against that decision, as the 14-day period to file his appeal expired on 4 July 2019.  A hearing of the application was conducted on 9 January 2020.  On 26 June 2020, the judge handed down his decision refusing to grant extension of time to the applicant as the applicant was unable to show that he has a reasonable prospect of success in his intended appeal^[2].

3.  On 7 July 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge's decision of 20 June 2019.

4.  The applicant is a national of Pakistan.  He is 30 years old.  He first arrived in Hong Kong illegally on 5 March 2016.  He raised a non-refoulement claim on 7 March 2016 on the basis that he would be harmed by his enemies, Munir, Sheeraz, Shaban and Tabir and their people because of a private dispute and that he feared being arrested by the police in Pakistan.

The Director’s decision

5.  By a Notice of Decision dated 31 July 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 2 risk^[3], BOR 3 risk^[4], torture risk^[5] and persecution risk^[6].

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board.  The hearing of the appeal before the Board was scheduled at 2:30 p m on 22 June 2018.  After waiting for the applicant for more than half an hour, the Board was satisfied that the applicant had failed to attend the hearing and decided to consider the appeal on the papers.

7.  The Board found the applicant's evidence unreliable as there were significant inconsistencies in the evidence and the documents submitted by the applicant did not support his claim.  The Board also considered the fact that the applicant would face serious criminal charges in Pakistan would not be sufficient to protect him from refoulement.  The Board decided that there was no credible evidence to show a genuine risk of harm to the applicant in his home country and dismissed his appeal on 30 July 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 29 August 2018 to seek leave to apply for judicial review against the decision the Board.  He put forward the following grounds for judicial review:

(1)  the applicant was not legally represented before the Board, which was in breach of procedural fairness;

(2)  the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(3)  the documents in the hearing bundle are in English and he was unable to obtain interpreter service;

(4)  he was confused at the appeal hearing;

(5)  the Board had relied upon hearsay information, source of news which is not officially recognized and outdated materials in relation to the country of origin information;

(6)  there was no screening for him for BOR 2 risk.

The judge’s decision

9.  A hearing was conducted before DHCJ K W Lung on 6 March 2019.  The judge rejected ground (1) as an applicant does not have an absolute right to free legal representation at all stages of the proceedings: Re Ahmed Syed Rafiq [2018] HKCA 178 at §22 and he had already had the benefit of legal representation at the screening stage. Grounds (2) to (4) failed as the applicant admitted to the judge at the hearing that a friend had explained the hearing bundle to him and he did not even attend the appeal hearing before the Board.  The judge rejected ground (5) as it was not supported by any evidence.  Ground (6) was rejected as the BOR 2 risk had been assessed by the Director in the enhanced screening mechanism.

10.  The judge found that the applicant does not have a reasonable prospect of success in his intended judicial review and dismissed the application on 20 June 2019.

11.  As mentioned earlier, the applicant’s application for extension of time to appeal against the judge’s decision of 20 June 2019 was rejected by the judge on 26 June 2020 and he renewed his application to the Court of Appeal by the present summons issued on 7 July 2020 with a supporting affirmation.

Grounds of intended appeal

12.  The applicant stated his intended grounds of appeal in the summons and supporting affirmation as follows:

(1)  the Board's decision was unfair as it did not give him a hearing when he was late. The applicant was in the hospital on the hearing date as he felt unwell;

(2)  the judge was unfair as the applicant did not receive any letter from the court informing him of the hearing date;  

(3)  the judge was unfair in assessing the documents.

13.  The Registrar of Civil Appeals made an order on 29 September 2020 requiring the applicant to lodge written submissions by 4 p m on 24 October 2020, failing which he shall be debarred from lodging any written submissions and be deemed to rely on only the representations made in the summons of 7 July 2020 and his supporting affirmation.  As the applicant has failed to lodge any written submissions as directed, he is thereby debarred from lodging any written submissions and is deemed to be relying only on the representations in the summons and supporting affirmation in the present application. 

Analysis and disposition

14.  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 success of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 20 June 2019.  The applicant took out a summons at the court below on 7 November 2019.  He was late by about three months, excluding the month of August for the court’s summer vacation.  The delay is substantial.

16.  The applicant did not provide any reason which can justify the delay.  In these circumstances, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

17.  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.

18.  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.

19.  The applicant's contention that the Board was unfair for not giving him a hearing is unmeritorious.  He explained in the present summons and at the hearing before the judge that he was in the hospital on the hearing date.  This is contrary to the explanation he gave in his letter sent to the Board on 22 June 2018, in which he stated that he went to submit a document regarding his room (ie for the application of accommodation with the International Social Service) before the hearing.  In any event, when he was given the opportunity to make oral submissions at the hearing before the judge, he failed to give evidence to impugn the Board's findings or explain the inconsistencies as identified by the Board in rejecting his evidence.  The applicant lost the opportunity of an oral hearing before the Board because of his own fault and he failed to demonstrate any real prejudice he has suffered as a result.

20.  The applicant contended that he did not receive any letter from the court informing him of the hearing date but he actually did attend both hearings before the judge on 6 March 2019 and 9 January 2020.  His ground pertaining to unfairness of the judge in the assessment of his documents is lacking in particulars, elaboration or evidence in support. 

21.  For the above reasons, the applicant does not have any prospect of success in the intended appeal. We refuse to grant an extension of time to appeal and dismiss his summons filed on 7 July 2020.