RE FAHIM FIZA AND OTHERS

CAMP 203/2019

[2020] HKCA 329

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):

Introduction

1.  By a summons filed on 23 August 2019, the 1^st, 2^nd and 3^rd applicants renewed their applications for an extension of time to appeal against the decision given by Deputy High Court Judge Bruno Chan (“the Judge”) on 31 August 2018 (“the Decision”) refusing to grant leave to the applicants to apply for judicial review.  The intended judicial review was against the decision of Torture Claims Appeal Board (“the Board”) dated 20 October 2017, in which the Board confirmed the decision made by the Director of Immigration (“the Director”) dated 9 February 2017.

2.  The applicants’ application for an extension of time to appeal was refused by the Judge on 5 June 2019.

3.  The applicants now renew their applications for leave to appeal out of time before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 28 August 2019, the applicants lodged their written submissions on 13 September 2019. 

4.  Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  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 1st applicant is the mother of 2^nd and 3^rd applicants who are both minors and all are nationals of Pakistan.  They came to Hong Kong illegally on 17 August 2015 and surrendered to the Immigration Department on 20 August 2015.  On 20 March 2016, they lodged their non - refoulement claims by way of written representation.  Their claims were made on the basis they would be harmed or even killed by the creditors of the 1^st applicant’s husband for his failure to repay his loan.  The 2^nd and 3^rd applicants relied on the 1^st applicant’s claim and the Director took joint considerations and assessment of the three applicants.

6.  By a Notice of Decision dated 9 February 2017, the Director decided against the applicants’ claim on BOR 2 risk, BOR 3 risk, the persecution risk, and the torture risk. 

7.  The applicants appealed to the Board.  After the hearing on 15 September 2017, the Board dismissed the applicants’ case on 20 October 2017.  For the reasons stated in [64] to [128] of the Board’s decision, it found that the applicants’ case was premised on a private and personal monetary dispute between the 1^st applicant’s husband and his creditors and that the applicants did not suffer any form of physical injuries.  The objective Country of Origin Information (“COI”) showed that reasonable internal relocation alternatives was available in Pakistan and it would not be unduly harsh for the applicants to move safely to other places where it would be unlikely for the creditors to waste their resources to locate them.   The Board found that the applicants failed to establish their claims on all applicable grounds.

The Judge’s Decision

8.  On 8 December 2017, the 1^st applicant filed her Form 86 together with her supporting affirmation for leave to apply for judicial review of the Board’s decision.   In her supporting affirmation, she set out the grounds for her intended challenge as follows:

(1) There was a lack of legal representation in her appeal before the Board.

(2) There was a lack of legal assistance for not providing her with any translation of her NCF to enable her to find out if the interpreter had translated the basis of her claim properly.   

9.  The Judge heard the leave application on 21 June 2018 and by the Decision of 31 August 2018, he considered the intended judicial review not reasonably arguable and has no realistic prospect of success, and refused to give leave to the applicants to apply for judicial review.  He gave his reasons at [11] – [16] of the CALL-1 Form:

“11. At the oral hearing of her leave application before me A1 brought along A2 and A3 and confirmed that her application was in fact also made on their behalves and that they should be added to her Form 86, that they be allowed to attend the hearing as her joint applicants, and that she be allowed to make submissions on their behalves, to which I granted leave to her request including the amendment of her Form 86 to include A2 and A3 accordingly. I shall next proceed to consider their grounds for their intended challenge.

12. For their complaint in ground (1) of not being provided legal representation in their appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13. The applicants already had the benefit of legal representation in presenting their case to the Director, and A1 was able to testify and make representation in their appeal hearing before the Board and to answer questions from the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in their appeal process, and I do not think this ground is reasonably arguable.

14. As for their complaint under ground (2) of not being provided with a translation of the NCF, it is clear that their NCF was completed on their instructions to their legal representation from DLS, and that they were assisted by an interpreter at their appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of their claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicants simply speculative and without merit.

15. The fact is that once it has been established by both the Director and the Board in their decisions with reliable and objective COI that it is not unreasonable or unsafe for the applicants to relocate to another part of Pakistan, I am unable to find any justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicants’ claim.”

10.  By a summon filed 8 March 2019, the applicants sought leave to appeal against the Decision out of time, as the 14-day period for them to lodge their appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A expired on 14 September 2018.  In the 1^st applicant’s supporting affirmation, she explained that she was applying for legal aid at the material time which caused the delay in taking out the summons.  She urged the court to consider her language barrier and her genuine effort in pursuing the intended appeal.

11.  By the decision dated 5 June 2019, the applicants’ summons was dismissed.  On the issue of delay, the Judge noted from the court record that the applicants applied for legal aid on 18 September 2018 which was already outside the 14-day period for taking out the summons for appeal.  Further, their legal aid applications were refused on 23 October 2018 and the applicants failed to explain why it had taken them a further four months until 8 March 2019 to issue their summons.  In the circumstances, the Judge did not accept that the applicants had provided any good reason for their substantial delay.

12.  Turning to the issue of merit, the applicants did not provide any proposed ground for their appeal, or any particulars or elaboration as to any error in the Decision or why it was unreasonable or unfair.  The Judge did not find any reasonably arguable basis to challenge the Decision or any prospect of success in their intended appeal, thus, the Judge dismissed the summons accordingly.

The Renew Application

13.  By the summons dated 23 August 2019, the applicants renewed the matter before us.  In the supporting affirmation and written submissions of the 1^st applicant, she advanced the following grounds of appeal:

(1) The Judge erred in his judgment by not taking all relevant circumstances into account, not making sufficient enquiries as to the reason for the delay and should give the applicants the benefit of doubt to the minimum level as to her reasons of delay.

(2) The applicants did not know that they were obliged to provide proposed ground of appeal for their applications for an extension of time to appeal against the Decision. 

(3) There was a lack of language assistance and the Decision was not read to the applicants.  They requested that the Decision to be translated to them and they should then be given reasonable time to respond.

Legal Principles

14.  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.

15.  Even if the court does not accept that an 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. 

16.  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

17.  In the present application, the 1^st applicant repeated the grounds of appeal as advanced before the Judge.  In her written submissions, she quoted her previous affirmation that “upon receiving the judgment dated 31 August 2018, I was uncertain as to what to do and so I approached the Legal Aid…”  According to the court file, the applicants made their legal aid applications on 18 September 2018 and the same were refused on 23 October 2018.  The 1^st applicant mentioned that at that time, she was told that the 14-day time limit in taking out the appeal had expired.  Despite the aforesaid, the 1^st applicant went on to say that she was only aware of the Decision until February 2019.  It was a clear contradiction.  As such, we did not accept that the 1^st applicant was only aware of the Decision in February 2019.  Even she did, she gave no reason why she failed to receive the Decision.  

18.  We take the view that the 1^st applicant should have at least been aware of the Decision at the time when she applied for legal aid and we failed to see any reason for the further substantial delay.  We are not satisfied that the 1^st applicant had provided good reason for the delay and it was inexcusable. 

19.  Turning to the issue of merit, the applicants must satisfy this Court that their intended appeal have real prospect of success.  The applicants failed to provide any valid ground of appeal pinpointing the error of law or procedural impropriety or irrationality of the Decision and therefore, the intended appeal is bound to fail.  

20.  The 1^st applicant said that she did not understand the Decision owing to her language barrier and she did not know that she was required to provide proposed grounds of her intended appeal.  Firstly, we noted that the summons, supporting affirmation and written submissions were all prepared in English, it suggested that the 1^st applicant was either familiar with English language or she had the necessary resources or assistance for her alleged language difficulties.  Secondly, the Judge had clearly pointed out in the decision dated 5 June 2019 that the applicants should provide proposed ground of appeal for their intended appeal.  However, she still failed to do the same in the present application and there was no excuse for her repeated failure.  Lastly, the applicants’ claims were rejected by the Board on the basis that the alleged money dispute was private in nature with no state involvement; that the applicants had suffered no actual physical harm in their home country; that there was no evidence suggesting any risk of harm upon their return and in any event; and that internal relocation was viable.  We agree with the Judge’s conclusion that the Board’s decision was justifiable and flawless.

21.  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 23 August 2019 is dismissed accordingly.

22.  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.