RE MOHAMED SHABDEEN MOHAMED GAZARI

CAMP 138/2019

[2019] HKCA 1224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 138 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 961 OF 2017)

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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 decision dated 30 April 2019 (“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 the decision of the Torture Claims Appeal Board (“The Board”) dated 16 November 2017. 

2.  On 12 June 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 leave application to this Court by way of a summons dated 20 June 2019. Pursuant to the directions of the Registrar of Civil Appeals given on 27 June 2019, the applicant filed his written submissions on 3 July 2019. The Registrar further directed that this Court will decide whether to determine the application on paper. As it is appropriate to do so, this application shall be determined on paper accordingly.

Background

4.  The applicant is a national of Sri Lanka. He came to Hong Kong as a visitor on 30 October 2002 and was allowed to stay until 30 November 2002. He did not depart upon expiry and overstayed since 1 December 2002. He was arrested by the police on 25 October 2013 and was then transferred to the Immigration Department for investigation. On 29 October 2013, he raised his non-refoulement claim.  The applicant’s claim was based on his alleged fear that if he were to return to Sri Lanka, he would be harmed or even killed by (i) a gangster called Roshan because he had assaulted and injured Roshan and (ii) some drug dealers whom the applicant had done business with as the applicant did not pay them.  Further, he would be arrested by the Sri Lankan police because he had failed to appear in court regarding a criminal case.

5.  By a Notice of Decision dated 22 April 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 30 March 2017, the Director rejected the applicant’s claim on the BOR 2 risk.

6.  The applicant appealed to the Board. After the hearing on 18 September 2017, the Board dismissed the appeal on 16 November 2017 (“Board’s Decision”). The Board found inconsistencies and discrepancies in the applicant’s evidence and rejected his case that (i) he owed debt to local drug dealers; (ii) Roshan owed any debt to the applicant over their drug dealings; and (iii) he had been detained by the police and was taken before the court for assaulting Roshan.  Further, the applicant had remained in Hong Kong for more than 10 years until he was arrested by the police and he only pursued his non-refoulement claim by then. The Board took the view that the applicant’s act did not reflect that he was a genuine asylum seeker nor he had any genuine fear of returning to his home country. In any event, internal relocation would be a viable option for the applicant. For the aforesaid reasons, the Board rejected the applicant’s claim on all applicable grounds.

The Judge’s Decision

7.  On 27 November 2017, 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 complained that he had been treated unfairly as he was not given more time to substantiate his claim with documentary proof.  He reiterated his fear for the risk to his life if refouled to his home country and expressed his wish to stay in Hong Kong.

8.  On 30 April 2019, 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] – [13] for her refusal to grant leave:

“ Conclusion

11. Despite the fact that the applicant did not submit any proper grounds of review, I have considered the papers carefully. The unfairness which the applicant complains of is irrelevant to his claim. Even if he can show that he was arrested, as he suggests, then he should face justice when he returns to Sri Lanka as he admits that he assaulted Roshan. That would not be a sufficient reason to offer him protection under the relevant regime. None of the documentation he wishes to rely upon support any suggestion of previous harm or potential harm from Roshan and that is the only harm which he says he fears.

12. I have not found any error of law or procedure on the part of the Adjudicator. 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 and extensively. There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

13. 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 14 May 2019).  By the summons filed on 30 May 2019, 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 but he gave no further explanation. At the hearing for his leave application before the Judge, he accepted that he had received all other official correspondences and the court file also suggested that the Decision was properly served upon him at his address given at that time.

10.  By the Leave Decision, the Judge refused to grant an extension of time.  The Judge took the view that the applicant had been in Hong Kong for 17 years with ample experiences in interacting with various government agencies since 2013, thus, it was incredible that the applicant would be unable to receive the Decision on this particular occasion and his mere denial of receiving the Decision was not accepted as a reasonable explanation. Further, it was the duty of the applicant to give the court an address to which correspondence or notice can come to his attention in a timely manner, otherwise the consequences of any delay would fall upon the applicant.   Lastly, the Judge found no merit of the underlying application. The applicant failed to provide any grounds of his intended challenge in Form 86 nor any grounds of appeal against the Decision. For the aforesaid reasons, the applicant’s summons was dismissed.

The Renewed Application

11.  By the summons dated 20 June 2019, the applicant renewed the matter before us. In the summons and the supporting affirmation filed on the same day, the applicant complained that he was not given an opportunity to be heard before the Judge and he was not satisfied with the Decision. He reiterated that he would face risk of harm if refouled and he would like to further explain to the court about his problem and the situation of his home county. 

12.  In the applicant’s written submissions, he merely repeated what was set out in the summons and his supporting affirmation. He further attached some news published on the internet about certain incidents suggesting certain unfair and discriminatory treatments of Muslims in Sri Lanka.

Legal Principles

13.  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.

14.  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.

15.  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

16.  We take the same view as the Judge that the applicant had failed to provide any satisfactory reason for his delay in applying for leave for judicial review. 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 in support of 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. 

17.  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 20 June 2019 is dismissed accordingly.

18.  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.