RE IQBAL AKHTAR

CAMP 393/2021

[2021] HKCA 1955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 393 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1385 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  dated 31 March 2021 dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and also lodged a written submission in support of his application.  

3.  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 applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dismissing his appeal against the decision of the Director of Immigration (“the Director”)  rejecting his non-refoulement claim.

5.  The applicant is a Pakistani national aged 39.  He entered Hong Kong illegally and was arrested by the police on 13 May 2012.  He later raised a non-refoulement claim based on fear of being harmed or killed by Taliban militants because he had refused to join them.  The details of the applicant’s claim were set out in the Director’s decision at [8].  We will not repeat them.     

6.  By his decision dated 26 January 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2],  persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard at an oral hearing held on 16 April 2018.  By its decision dated 15 June 2018, the Board dismissed the appeal.  The Board did not accept the applicant had problems with the Taliban as it found the applicant’s claims vague, unsubstantiated and not in accordance with the background evidence about the way the Taliban operated and recruited followers.  The Board also found that the applicant failed to prove the requirements of the applicable grounds. The Board further found state protection and internal relocation alternatives were reasonably available.  The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the applicable grounds.

8.  On 13 July 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  In the supporting affirmation, the applicant complained that the decision was unfair and unreasonable as his life was really in danger and he might be killed if he returned to Pakistan.  The attachment to the affirmation further stated that the Taliban was very powerful, and efforts by the applicant’s family to get help from the police and agencies failed.  It also stated that it was easy for the Taliban to locate the applicant and his family as they are Pakhtoon who are easily recognized by their physique, and because the terrorists also look like Pakhtoon, the applicant and his family face difficulties in renting accommodation.  

9.  The Judge dealt with the application on the papers.  By a Form CALL-1 dated 31 March 2021[5], the Judge refused the application for leave to apply for judicial review.  The Judge considered the applicant had only repeated his claims made to the Director and the Board, who had investigated and rejected them.  The Judge found no error of law or procedural unfairness in the Board’s decision and there was no reasonably arguable basis to challenge the Board’s findings on the grounds of irrationality.  The Judge therefore concluded that the intended judicial review had no reasonable prospect of success.  

10.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 14 April 2021.

11.  By a summons filed on 2 June 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper and by his decision handed down on 26 July 2021[6], he dismissed the application. 

12.  On 17 September 2021, the applicant filed the present summons together with an affirmation to make a further application to this Court for extension of time to appeal. 

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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.  The applicant was seven weeks late when he filed the 2 June 2021 summons.  The delay is not insubstantial. The applicant stated in the summons that he did not receive the court’s order and he only learnt that his application had been refused when he reported to the Immigration Department.  He further stated in the affirmation that he did not know the system in Hong Kong.  We note from the court record that the Form CALL-1 and the Judge’s order were mailed to the address provided by the applicant, and had not been returned by the post office.  We therefore have reservations as to the explanation given by the applicant in the summons, especially when he had not deposed to or elaborated on it in his affirmation. We would next turn to consider the prospect of the intended appeal.   

15.  In considering the merits of the intended appeal, we 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].

16.  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’s decision, 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.

17.  In the present application, the applicant did not provide any ground in support of his intended appeal in either the summons or the affirmation. 

18.  The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and referred to decisions on Wednesbury unreasonableness and also section 37ZT of the Immigration Ordinance which concerns the late filing of notice of appeal to the Board.  It submitted that: (1)  the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim; (2)  “the Board made decision on the basis of other applicant” and did not know that when people sought help from the police, they would be told it was their personal matter and the applicant did not have the money to pay them to work on his file.

19.  In our view, the matters put forward in the written submission do not contain arguable grounds of appeal against the Judge’s decision.  Firstly, it was not shown how the legal propositions quoted in the written submission relate to the applicant’s case.  The reference to section 37ZT of the Immigration Ordinance is irrelevant since the applicant was not late in his appeal to the Board.  Secondly, the complaint about the Board is a new argument, and a mere assertion lacking in particulars.  It does not provide any proper basis for challenging the Board’s findings and rejection of the facts underlying the applicant’s non-refoulement claim. 

20.  We have in any event examined the Board’s decision.  We agree with the Judge that there is no reasonably arguable basis for challenging its finding and the reasons do not show any error of law, irrationality or procedural irregularity.  

21.  As the applicant’s intended appeal against the Judge’s refusal of leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 17 September 2021.