RE SAJID MOHAMMAD

CAMP 51/2022

[2023] HKCA 127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 51 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 3019 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 28 September 2021, DHCJ P. Li (“the Judge”) refused to grant an extension of time to the applicant for application for leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”) and dismissed the leave application. 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 19 October 2021 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 8 February 2022. 

3.   On 14 February 2022, the applicant filed a summons in CAMP 51/2022 (“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 14 February 2022, the applicant lodged his written submissions on 28 February 2022.   

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 national of India. He entered Hong Kong illegally on 4 June 2014 and was arrested by the police on 30 July 2014. On 2 August 2014, he raised his non-refoulement claim alleging that if refouled, he will be harmed or even killed by the brother of his girlfriend or his associates as he is Muslim and his girlfriend is a Hindu.  The factual background of this case was succinctly summarised by the Judge at [2] – [9] of the JR Decision ([2021] HKCFI 2864). 

7.   By a Notice of Decision dated 4 August 2016 and a Notice of Further Decision dated 5 June 2017, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

8.   The applicant appealed the Director’s decisions to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”). The applicant attended an oral hearing on 21 July 2017. By its decision dated 31 July 2017, the Board dismissed the appeal. At the Board’s hearing, the applicant admitted that he had fabricated his original claim and alleged that his real case actually related to loans for his business, but as he realised through word of mouth that claims based on the latter do not succeed, he made up his original claim. For the reasons set out at [20] to [43], the Board rejected his evidence on the issue of credibility and found that his last-ditch attempt to re-characterise his claims was nothing more than desperation. The Board found that his evidence about his loan was vague and it was not satisfied that he is in danger from loan sharks. His claimed fear of Hindu/Muslim violence was a general problem in Indian society and not personal to him. The Board found that nothing the applicant claimed could be given any credence and thus rejected his non-refoulement claim on all applicable grounds. 

Application for leave to start judicial review

9.   On 31 December 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision. Pursuant to Order 53, rule 4(1) of the Rules of the High Court (Cap.4A), an application for leave to apply for judicial review should be made promptly and in any event within 3 months from the date when the grounds for application first arose. By the time he filed the Form 86, he was out of time for about 14 months. 

10.   In his supporting affirmation, he did not provide any ground for relief save for saying that he did not agree with the Board’s decision and that he cannot go back to India as his life is still in danger. 

The JR Decision

11.   The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of the Board’s decision, the Judge refused to grant an extension of time for the application for leave to apply for judicial review and dismissed the leave application for reasons set out in [18] - [20] of the JR Decision:

“18. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere. 

19. The adjudicator had analysed the evidence of the applicant in detail. His version before the TCAB was an obvious fabrication. I agree with the adjudicator that the applicant was not a credible witness. The adjudicator was right to reject his evidence. 

20. In my judgment, there is no error of law or procedure. The TCAB decision is reasonable. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success. ”

Application for extension of time to appeal the JR Decision

12.   As mentioned earlier, the applicant failed to file a notice of appeal within time. He filed a summons in the Court of First Instance on 19 October 2021 for an extension of time to appeal. That was dismissed by the Judge on 8 February 2022. Hence, the Summons to this court. 

Discussion

13.   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). 

14.   As for (1), the applicant was late by 1 week between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance. His delay was not substantial. 

15.   As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he did not have money to pay the filing fee. There was no evidence in support of this allegation other than his bare assertion. 

16.   The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant did not provide any grounds of appeal against the JR Decision. 

17.   In the summons and supporting affirmation filed to this court, he complained that the Judge was wrong in accepting the Board’s finding and failed to consider his non-refoulement claim on all applicable grounds, in particular on grounds of risk of violence under articles 2 and 22 of the Hong Kong Bill of Rights Ordinance. 

18.   In his written submissions lodged with this court, he quoted passages from ST v Director of Immigration ^[5][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on high standards of fairness. He complained that the Board had acted in a procedurally unfair manner without properly assessing his credibility. 

19.   In our judgment, the applicant’s complaints that the Judge had wrongly decided to endorse the Board’s decision was no more than his mere and general disagreement with the JR Decision without any elaboration and specifics in support of his contentions. General assertions without particulars cannot be effective grounds to support a judicial review, see: Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578. 

20.   It is clear in the Board’s decision that the applicant’s case was rejected on the issue of credibility, and nothing he said (whether on the original or later claims) was given credence. Even on his own evidence, on his original claim, his claimed fear of conflict and violence between Hindus and Muslims is a general problem in Indian society and he admitted that it is not personal to himself. And on his later claim, he was only pursued by the loan shark once and did not suffer any serious injury. The Board did not find any substantial grounds to believe that he would face risk of harm to life if refouled and his non-refoulement claim was rejected on all applicable grounds. 

21.   We are 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. We do not find Articles 2 and 22 of the Hong Kong Bill of Rights Ordinance are engaged in this case. 

22.   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 14 February 2022.