RE FAHIM FIZA AND OTHERS

CAMP 203/2019

[2021] HKCA 662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 203 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1040 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):

1.  By a judgment dated 21 May 2020 ([2020] HKCA 329) (“the Judgment”), this Court (Yeung VP and Pang JA) refused to grant an extension of time to the 1^st, 2^nd and 3^rd applicants to apply for leave to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 31 August 2018 in HCAL 1040/2017 refusing to grant the 1^st, 2^nd and 3^rd applicants leave to apply for judicial review. The applicants sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 20 October 2017 dismissing their petition/appeal against the decision of the Director of Immigration (“Director”) given on 9 February 2017 rejecting their non-refoulement claims.

2.  On 5 November 2020, the applicants filed a Notice of Motion for leave to appeal the Judgment to the Court of Final Appeal. However, it was out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (“the Ordinance”) stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from and the deadline for filing the Notice of Motion expired on 19 June 2020.

3.  Under section 24(6) of the Ordinance, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party: Begum Jahanara v Ian Candy, Esq [2021] HKCA 83, per Lam VP at [4] and the authorities cited therein.

4.  In the present case, the applicants delayed for almost 5 months and the delay is substantial.  The 1^st applicant explained in the notice of motion and her supporting affirmation that she was not aware of the Judgement until she reported to the Immigration Department. She claimed that she did not know the 28-day time limit in filing the appeal as it was not mentioned in the Judgment and English is not her first language. She also needs to look after her children and therefore she did not closely follow up the appeal matter. 

5.  In our judgment, the 1^st applicant failed to provide any good reason for her substantial delay.

6.  In any event, the applicants have not shown any merits in their intended application for leave to appeal to the Court of Final Appeal. 

7.  In the Notice of Motion and supporting affirmation, the 1^st applicant advanced the following grounds on the merit of the intended appeal:

(1)  Despite her language incapability, there was no reasonable arrangement to enable her to understand the content of the judgments and thereby deprived her of the right to seek further avenues of appeal.  It was a wrongful exercise of case management power and that careful consideration should be given to extending case management power to how a judgment is delivered.

(2)  She could not understand the judgment completely as she was not given a translation.  She requested that the judgment be read or translated to her and to give her reasonable time to respond.

(3)  She urged the court to reconsider her case.

8.  The applicants have failed to lodge their written submissions as per the directions made by the Registrar of Civil Appeals on 9 November 2020.

9.  We do not see any merits in the applicants’ grounds of appeal.  The only complaints made by the 1^st applicant were that the lack of language and legal assistance had hindered her proceeding with her appeal.  However, they are not viable grounds of appeal against the Judgment:

(a)    Insofar as the lack of language assistance is concerned, in the present case, all the court documents filed were in English.  It is clear that either the 1^st applicant is herself conversant with the English language or she has access to language assistance of her own if she finds it necessary.  Further, the applicants were assisted by an interpreter before the Deputy Judge.  In any event, it is trite law that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as she desires: see [20] of Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264; also [12] of Re Gurung Sagar [2019] HKCA 658.  There is no merit in this complaint.

(b)  As for the lack of legal assistance, this court has emphasised repeatedly that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the process: [18] of Re Zunariyah [2018] HKCA 14; [11] of Re Zahid Abbas [2018] HKCA 15; [11] of Re Tariq Farhan [2018] HKCA 17; and [13] of Re Lopchan Subash [2018] HKCA 37.  In this respect, the applicants were provided with legal representation under the Duty Lawyer Scheme in relation to their claims before the Director.  There is also no merit in this ground.

10.  We further take note that the 2^nd and 3^rd applicants in the present case are minors.  The proper approach to children’s non-refoulement claims has recently been considered and explained by this Court in Fabio Arlyn Timogan v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board, [2020] HKCA 971 (Lam VP, Barma and Au JJA) and in Re Jasvir Singh & others [2021] HKCA 53 (Lam VP and Au JA).

11.  We shall not repeat everything that has been said in those cases.  Suffice for the present purpose to note that, non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.  It is therefore pertinent for the court to examine, in the context of the requisite high standard of fairness, whether the minors’ non‑refoulement claim have been properly considered by the Board as separate claims having regard to their own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for non-refoulement claim which had not been advanced or properly advanced before the Board because of the absence of the legal representation.

12.  In our judgment, the latest authorities cannot avail the 2^nd and 3^rd applicants in the present case.  The 2^nd and 3^rd applicants’ non-refoulement claims framed before the Board was that they would be put at risk by returning to Pakistan as the creditors are still looking for their father for the personal loan.[1]

13.  According to the 1^st applicant, they had encountered 3 incidents in Pakistan.  The first one happened in May 2015 when there were some 4 to 5 men who went to the applicants’ house knocking on their door and then went to the neighbor to ask for the whereabouts of the 2^nd applicant and they left thereafter.  The 1^st applicant suspected that they might want to kidnap the 2^nd applicant. The second incident happened in July 2015 when the same gang went knocking on the applicants’ door, as the 1^st applicant did not answer the door, the gang waited and left after about an hour.  The third incident happened on the next day when the 1^st applicant went out to collect visa documents with her husband, they were robbed by some robbers. 

14.  Based on the facts given by the 1^st applicant, the Board found that the 2^nd and 3^rd applicants stayed safe in their house in the first and second incidents and they were not present at the third incident.  Thus, on the evidence, the acts and conduct had not attained the degree of severity in pain or suffering for them be regarded as torture[2] and in any event, as the state has no adverse interest in the applicants and the creditors were not so powerful and influential to trace down and control the movement of the applicants, internal relocation would be a reasonable and viable options for all the applicants to avoid the creditors.  The Board, in reaching the said conclusion, had paid regard to the 2^nd and 3^rd applicants’ personal situation, and that they speak Urdu and English and are Moslems, like the 95% of the Pakistani population, they would not encounter any particular problem for internal relocation.[3]   

15.  There is no evidence suggesting that the 2^nd and 3^rd applicants would face any risk of harm other than those already rejected by the Board upon refoulement.  Thus, in our view, the Board had properly assessed the 2^nd and 3^rd applicants’ claims independently and separately and had duly given reasons for rejecting their claims.  There is nothing to indicate that the merits of the 2^nd and 3^rd applicants’ claims were not fully or adequately explored before the Board due to lack of legal representation such that the high standards of fairness were not met.

16.  Further, we have looked at the evidence filed in this application and do not see any material that may give rise to a concern that there may be non‑refoulement grounds that relate specifically only to the children but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.

17.  In the premises, the 1^st, 2^nd and 3^rd applicants have not raised any reasonably arguable ground of appeal on the merit of their claims, or any discernible or arguable ground for disturbing the Judgment.

18.  We do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the Court of Final Appeal for determination pursuant to section 22(1)(b) of the Ordinance.

19.  For these reasons, it will be futile to extend time.  We therefore refuse to grant leave to appeal to the Court of Final Appeal out of time, and dismiss the application.

[1] [10] of the Board’s decision.

[2] [66] – [69] of the Board’s decision.

[3] [113] & [114] of the Board’s decision.