RE REHMAN AZIZ UR

CAMP 291/2021

[2022] HKCA 997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 291 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2722 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 26 April 2021, DHCJ K.W. Lung (“the Judge”)  refused to give the applicant leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 11 May 2021 for extension of time to appeal.  That summons was dismissed by the Judge on 16 June 2021.

3.  On 28 July 2021, the applicant filed his summons in CAMP 291/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 28 July 2021, the applicant lodged his written submissions in support of the Summons on 11 August 2021.

5.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a Pakistani national. He came to Hong Kong illegally on 22 December 2009 and was arrested by police on the same day.  He made a torture claim to the Immigration Department under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment on 24 December 2009 alleging that if refouled, he would be harmed or even killed by Javed (“J”)  and his associates due to a land dispute.  His torture claim was rejected on 17 May 2012.  He did not appeal.  He lodged a non-refoulement claim with the Immigration Department on 10 March 2014 on the same allegations.  The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2021] HKCFI 1056).

7.  By a Notice of Decision dated 12 January 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2] and the persecution risk[3].

8.  The applicant appealed the Director’s 2017 decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 20 September 2018. By its decision dated 8 November 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [29] to [40], the Board found that the applicant was not a reliable and truthful witness.  His evidence was vague, as he was even unable to say how J had occupied his land, or how much money he himself had paid for it, or even which political party J was associated with.  The Board came to the conclusion that the applicant had fabricated his story, that he was not at any time involved in a land dispute or that J had occupied his land, or that he was threatened or that his uncle had been killed as a result of any such dispute. For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 3 December 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  In his supporting affirmation, he set out grounds which were considered by the Judge as “a rather lengthy and repetitive litany of grounds, many of which may not be relevant to his case.”  In gist, his grounds were summarised as follows:

(1)  no reasonable basis or adequate reasons to reject his credibility;

(2)  failing to consider extended state acquiescence;

(3)  failing to consider the Country of origin information (“COI”);

(4)  irregularities such as failing to investigate the COI; putting selective weight on COI; referring to COI without prior referring it to the applicant; failing to consider consistent system of human right violation; failing to consider state protection; considering irrelevant issues, and not having legal representation or a hearing for the BOR 2 risk assessment;

(5)  procedural impropriety such as insufficient chance for the applicant to call evidence; failing to call psychological and/or psychiatric report; applying an incorrect standard of proof and no proper basis for internal relocation assessment.

The JR Decision

10.  The applicant did not request for an oral hearing and the application was disposed of on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [12] - [17] of the JR Decision:

“12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

14.  The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

15.  His grounds in support of his application above are sweeping. Most of them are not applicable to his case.  The Board has considered his evidence at the hearing before it.  See paragraphs 29-40 in the Board’s Decision.  I consider that it is unnecessary to address each of his grounds.  I have dealt with the relevant grounds by reference to the authorities above. There is no evidence or specifics in support of the other grounds.  There is no problem with the consideration of the Country of Origin Information by the Board or the application of the law to his case.  The grounds above should be rejected.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal against the JR Decision.  He filed a summons in the Court of First Instance on 11 May 2021 for extension of time to appeal.  That was dismissed by the Judge on 16 June 2021.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (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 putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

13.  As for (1), the applicant was only late by 1 day between the deadline for filing an appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was minimal.

14.  As for (2), the reasons for the delay, as the delay was minimal, the more important issue is whether there are merits in the intended judicial review.

15.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not raise any proper ground of appeal against the JR Decision.  He simply indicated that he wanted to appeal as the Judge had dismissed his application.

16.  In his written submissions, he simply repeated the background of his case and complained that the Director and the Board did not accept his evidence and failed to consider the situation he faced.  He urged this Court to grant time extension for him to appeal against the JR Decision and to save him from J.

17.  It is clear from the Board’s decision that the applicant’s claim was rejected for lack of credibility as his evidence on the key elements of his claim was vague and evasive.  It was open to the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

18.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 28 July 2021.