RE SOHAIL ADIL

CAMP 207/2021

[2021] HKCA 1463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 207 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2076 of 2018)

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JUDGMENT

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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 Bruno Chan (“the Judge”) dated 14 September 2020 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and 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, affirmation and written submission, 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”) dated 20 September 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 19 November 2015 and 16 March 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 31.  He was arrested by the police on 30 September 2013 while on board of a sampan sailing illegally into Hong Kong from Shenzhen.  He later raised a non-refoulement claim based on fear of being harmed or killed by his paternal uncle due to political differences.  The applicant and his family were supporters of Pakistan Muslim League (Q) while his uncle was a member of Pakistan Muslim League (N).  The details of the applicant’s claim were set out in the Director’s first decision at [6] and the Board’s decision at [24] to [39].  We will not repeat them.     

6.  By two decisions dated 19 November 2015 and 16 March 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds, and the further decision covered the BOR 2 risk[4] ground.

7.  The applicant’s appeal to the Board was heard on 15 March 2018, during which the applicant declined to answer questions from the Board.  By its decision dated 20 September 2018, the Board dismissed the appeal.  The Board considered that, in the absence of oral evidence from the applicant, it could not determine the issues relating to the applicant’s general credibility and whether the past events that the applicant relied on had indeed occurred.  The Board did not attach any weight to the applicant’s case with regard to the historical problems between his and his uncle’s families as being hearsay, and the future risks he might face as being speculative.  The Board concluded that the applicant failed to establish he faces a real risk of harm, and concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.

8.  On 2 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He did not provide any ground for seeking relief.  He only stated in his supporting affirmation that he would be killed if he were to return to his home country. 

9.  The Judge heard the application at an oral hearing at which the applicant was absent.  By a Form CALL-1 dated 14 September 2020[5], the Judge refused to give leave to apply for judicial review and gave his reasons at [10] to [14].  In brief, the Judge found there was no reasonably arguable basis for the intended judicial review given that the applicant did not provide any ground for seeking relief and there was no error of law or procedural unfairness in the Director’s and the Board’s decisions.  The Judge also did not find any failure on the part of the primary decision makers to apply the high standards of fairness.

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 28 September 2020.

11.  By a summons filed on 11 January 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 20 May 2021, and by his decision handed down on 3 June 2021[6] refused the application. 

12.  On 7 June 2021, the applicant filed the present summons 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 late by more than three months, which is very substantial delay.  In the application before the Judge, the applicant explained that he did not receive the court’s decision as he was serving a term of imprisonment.  The Judge did not find the explanation satisfactory, noting that the court’s decision was mailed to the address provided by the applicant and had not been returned, and that the applicant did not provide any proof of his involvement in a criminal case.  In the present application, the applicant stated in his supporting affirmation that he did not receive the court’s decision in time.  While we share the Judge’s observation on the lack of documentary proof of his involvement in a criminal case, we are prepared to proceed on the basis that the court’s decision did not reach the applicant in time for him to file an appeal.  We would focus on the merits of his 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 has put forward the following ground in his supporting affirmation:

“The decision made by [the Judge] has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country.”

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 also made reference to the Wednesbury unreasonableness principle and section 37ZT of the Immigration Ordinance, Cap. 115, which relates to late filing of notice of appeal to the Board.  It is said that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim.  It further complained that the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal without properly assessing the applicant’s credibility.

19.  In our view, the ground and the arguments put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  The ground set out in the supporting affirmation is only a bare general statement, with no details or particulars.  The ground is in any event unarguable in view of the Board’s conclusion that the applicant’s claim was not established.  As for the written submission, it was not shown how the legal propositions quoted in it relate to the applicant’s case.  For example, the reference to section 37ZT of the Immigration Ordinance is completely misplaced because we are not concerned with late filing of notice/petition to appeal with the Board.  

20.  We have also examined the Board’s decision.  Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  In the circumstances, the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing leave to apply for judicial review.

21.  As the applicant’s intended appeal against the Judge’s refusal to give 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 7 June 2021.