Re Saqib Mehmood

CAMP 140/2019

[2020] HKCA 491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 140 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 1429 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.By a decision set out in Form CALL-1 dated 27 February 2019 (“the Deputy Judge’s Decision”) [2019] HKCFI 456, Deputy High Court Judge KW Lung (“the Deputy Judge”) refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 13 July 2018 (“the Board’s Second Decision”) and the decisions of the Director of Immigration (“the Director”) dated 10 June 2015 (“the Director’s First Decision”) and 16 June 2017 (“the Director’s Second Decision”) rejecting his non-refoulement claim.

2.In the Deputy Judge’s Decision, the Deputy Judge also refused to extend time for the applicant to apply leave to judicially review the Board’s decision dated 3 April 2017 (“the Board’s First Decision”).

3.The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”. Similarly, the Board’s First Decision and the Board’s Second Decision will be referred to collectively as “the Board’s Decisions”.

4.On 5 March 2019, the applicant issued a summons before the Deputy Judge seeking leave to appeal the Deputy Judge’s refusal to grant extension of time (“the CFI Leave to Appeal Summons”).  On 19 June 2019, the Deputy Judge refused to grant leave to the applicant (“the Deputy Judge’s Leave Decision”) [2019] HKCFI 1756 on the basis that the intended appeal had no reasonable prospect of success.

5.By a summons dated 24 June 2019 (“the CA Leave to Appeal Summons”), the applicant renewed his application for leave to appeal before this Court.  Pursuant to the directions of the Registrar of Civil Appeal given on 18 July 2019, the applicant lodged his written submissions on 30 July 2019[1].

6.Having considered the CA Leave to Appeal Summons, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court (Cap 4A).  This is our judgment.

Background

7.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 2 December 2008 and was arrested on the same date.  He lodged a torture claim on 6 December 2008.  Upon the commencement of unified screening mechanism on 3 March 2014, his torture claim was taken to be a non-refoulement claim.

8.The details of the applicant’s claim and his personal background were set out in [6] of the Director’s First Decision and [22] - [45] of the Board’s First Decision.

9.Briefly stated, the applicant claimed that if he was to return to Pakistan, he would be harmed or killed by his parental uncles Abdul Razaq (“Razaq”) and Muhammad Fiaz (“Fiaz”) as well as Razaq’s son Tariq Mehmood (“Tariq”) because of a family land dispute.  The applicant claimed that his father Riaz had some disputes with Razaq and Fiaz about the transfer of family lands.  As a result, arguments and fights were exchanged between his father and elder brother, on one side, and his uncles on the other.  A powerful man named Khalid from the Pakistani Muslim League (Q) (“PMLQ”) sided with his uncles.  He claimed that Khalid and his uncles filed false claims against his elder brothers which led to the arrest and detention of his three elder brothers.  Thereafter, the applicant left his home village.  He heard from his friend that Tariq threatened to kill him if he returned to his home village.  He was also informed by his friend that his two brothers died in a fight in his home village and his father died from heart attack.

The Director’s Decisions and The Board’s Decision

10.By the Director’s Decisions, the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

11.Thereafter, by way of a letter dated 17 May 2017, the Director invited the applicant to submit additional information on or before 31 May 2017 for the assessment of the BOR 2 risk[5]. The applicant did not respond to this letter or put in any additional information.  By the Director’s Second Decision, the Director dismissed the applicant’s claim on BOR 2 risk.

The Board’s First Decision

12.The applicant appealed the Director’s First Decision to the Board and the hearing of which was held on 26 October 2016 (“First Board Hearing”).  On 3 April 2017, by way of the Board’s First Decision, the Board dismissed the appeal.  The Board found that both the land dispute and Tariq’s friendship with the police were plausible.  Nevertheless, based on the applicant’s version of events, it was difficult for the Board to conclude that there was a real risk of harm due to the land dispute.  First, the applicant’s two elder brothers died in a brawl.  They did not seem to be killed specifically due to the land dispute.  Second, the applicant’s father died from heart attack but not murder.  Third, the PMLQ was not the party in charge at the time of the hearing.  Thus, the Board did not have sufficient evidence to find that the applicant would face real risk of harm if he returned to Pakistan ([49] - [66] of the Board’s First Decision).  Alternatively, the Board found that internal relocation was available to the applicant ([76] - [82] of the Board’s First Decision).  As a result, the Board dismissed the applicant’s appeal against the Director’s First Decision.

The Board’s Second Decision

13.On 25 July 2017, the applicant appealed the Director’s Second Decision to the Board.  Under section 37ZS(1) of the Immigration Ordinance (Cap 115) (“the IO”), the applicant had 14 days, ie, until 30 June 2017, to file his appeal against the Director’s Second Decision to the Board.  He was therefore 25 days out of time.

14.The Board considered the applicant’s delay in filing the notice of appeal on paper[6]. The Board noted that in the notice of appeal, the applicant only asserted that he did not receive the Director’s letter dated 17 May 2017 as well as the Director’s Second Decision.  However, the applicant did not provide any explanations as to why he did not receive them.  There was therefore no good reason for the delay[7]. The Board was also of the view that, in the absence of any new information or materials, the applicant was only rehashing of what appeared in the documents and the evidence advanced before the Board in the First Board Hearing.  The Board had already considered all those evidence and dismissed the applicant’s claim based on the other risks by way of the Board’s First Decision.  The Board therefore came to the view that, given its earlier conclusion and finding in the Board’s First Decision, there was also no merits in the applicant’s BOR 2 claim[8]. As a result, the Board concluded that there was no special circumstance to allow the late filing and dismissed the applicant’s appeal against the Director’s Second Decision.

The Deputy Judge’s Decision

15.On 20 July 2018, the applicant filed his Form 86 for leave to apply for judicial review against only the Board’s Second Decision and the Director’s Decisions.  He had not included the Board’s First Decision as one of the decisions under challenge.

16.In his supporting affirmation filed on the same date, the applicant complained that he did not have legal and language assistances. He also complained that the Board in not holding a hearing fettered its discretion in refusing his appeal, acted in a procedural unfair manner.  He also said the Board’s decision to refuse his appeal was unreasonable or irrational and that they failed to meet the greater care and duty owed to self-represented applicant.

17.In particular, in complaining that the Board determined his out of time appeal without a hearing, he reiterated that he did not receive the Director’s Second Decision.  He further stated that it had taken almost two years for the Director to invite him to submit additional facts to assess his BOR 2 risk and that should potentially require a new screening interview.

18.The Deputy Judge heard the applicant’s leave application.  After considering the grounds of review and hearing the applicant in court, the Deputy Judge refused to grant leave to apply for judicial review against (a) the Director’s Decisions on the basis that there were no exceptional circumstances to permit the applicant to challenge these decisions, and (b) the Board’s Second Decision on the basis that the grounds of review lacked any arguable merits.

19.Further, the Deputy Judge also treated the applicant’s application as including a challenge against the Board’s First Decision and refused to grant extension of time to the applicant to apply for judicial review against the Board’s First Decision on the basis that the intended challenge also had no reasonably arguable merits.

20.He explained his reasons at [14] - [35] of the Deputy Judge’s Decision as follows:

“Application for leave for judicial review

14. By Form 86 dated 20 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decisions and the Board’s Further Decision.

15. He did not ask for leave to apply for judicial review of the Board’s Decision. However, such application would be out of time as the Board’s Decision was delivered on 3 April 2017 whereas his application was lodged on 20 July 2018, which has long passed the 3 months’ limit. Nor did he seek extension of time to apply for leave for judicial review of the Board’s Decision. I can see that the purpose of the applicant’s application is not only for judicial review of the Board’s Further Decision, but also its Decision as well. For practical and case management purposes, I shall treat his application as including for an extension of time to apply for leave for judicial review of the Board’s Decision as well.

16. In his affirmation in support of his application dated 20 July 2018, the applicant set out the reasons in support of his application below:

(1) the Director and the Adjudicator had not maintained high standard of fairness in processing his application for non-refoulement claim and their decisions were irrational and unreasonable;

(2) he did not receive the Director’s letter for additional facts for BOR 2 risk;

(3) he had not been screened by interview by the Immigration officer for the BOR 2 risk;

(4) he was not legally represented for his appeal before the Board; and

(5) it was unreasonable for the Board to refuse to extend time for him to appeal the Director’s Further Decision on BOR 2 risk.

DISCUSSION

The Director’s Decisions

17. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and his applications for leave to appeal the Director’s Further Decision on BOR 2 risk. It had made its decisions accordingly.

18. I note that the applicant had raised the issue that there had not been any screening interview for BOR 2 risk.

19. Under section 37ZB of the Immigration Ordinance, Cap. 115 (‘the Ordinance’), the Immigration officer has the power to require information from the applicant. Under section 37ZB(1)(b), the Immigration officer has to have an interview with the applicant:

‘(1) After a completed torture claim form is returned by a claimant, an immigration officer—

(a) may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies; and

(b) must require the claimant to attend an interview to provide information and answer questions relating to the claimant’s torture claim.’

20. The Immigration officer was not obligated to hold another interview with the applicant under section 37ZB(1)(b) of the Ordinance. I find that there are no exceptional circumstances, for which the applicant can apply for judicial review of the Director’s Decisions to this Court.

21. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

22. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decisions

23. The applicant’s non-refoulement claim is obviously a facts sensitive application. The Adjudicator had found the facts of the case. See §8 supra.

24. Facts are to be found by the Director or the Board. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§13 and 14:

‘13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….’

‘14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

25. Ground (1) is the applicant’s opinion without any evidence to substantiate it. It fails.

26. Grounds (2) and (5) are considered together. They relate to the Adjudicator’s decision of refusing leave for the applicant to appeal BOR 2 risk Decision out of time, which the applicant considers to be irrational and unreasonable. The Adjudicator had considered the applicant’s additional facts in his Notice of Appeal and he made the decision as he did that the applicant had no additional facts other than those facts in the previous hearing before himself.

27. Under section 12 of Schedule 1A of the Immigration Ordinance, Cap. 115,

‘The Appeal Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing.’

28. The above power relates to the appeal, and a fortiori, it applies to the interlocutory application such as the applicant’s application for extension of time for appeal. The Adjudicator therefore has the power to make his decision of determining the applicant’s application without a hearing.

29. The applicant is unable to show that the Adjudicator had committed any error in making such decision.

30. Ground (2) and (5) therefore fail.

31. Ground (3) has been covered by paragraphs 17 and 18 above. This ground fails.

32. Ground (4) also fails. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: ‘This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’

33. I find that the applicant is unable to show any reasonable chance of success in his proposed judicial review.

CONCLUSION

34. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for judicial review. Accordingly, I dismiss his application.

35. Having considered the Board’s Decision, I conclude that if the applicant applies for extension of time for his application for leave to apply for judicial review of the Board’s Decision, he has no reasonable prospect of success in his proposed judicial review of the Board’s Decision. I would therefore also refuse to grant him any extension of time to apply for leave for judicial review of the Board’s Decision.”

Extension of time in the court below

21.On 5 March 2019, the applicant took out the CFI Leave to Appeal Summons seeking leave to appeal the Deputy Judge’s Decision.

22.In his supporting affirmation filed on the same date, he mentioned at paragraph 2 that “it was not my original intention to seek time extension” and that there were special circumstances warranting the time extension be granted, such as lack of high standard of fairness, lack of assistance (including not referring his case to the Duty Lawyer Service), failure to ensure that the Director’s Second Decision was sent to him; failure to arrange new screening interview; failure to hold an oral hearing for his BOR 2 risk appeal before the Board.  He also complained that the additional facts of his BOR 2 risk should be assessed by the Director before the Board could decide it on appeal.

23.By way of the Deputy Judge’s Leave Decision, the Deputy Judge refused to grant leave to the applicant to appeal the Deputy Judge’s decision on the Board’s First Decision on the basis that the applicant failed to identify any errors committed by the Deputy Judge and thus his intended appeal had no reasonable prospect of success.

Renewed application for leave to appeal

24.By way of the CA Leave to Appeal Summons, the applicant renewed his application to this Court.  In his supporting affirmation, the applicant repeated his arguments for extension of time in the court below.

25.In the written submissions filed on 30 July 2019, the applicant asked this Court to review his claim and the situation in his home country.  He also submitted that he did not have legal and language assistance.

26.Although this is a renewed application for leave to appeal against the Deputy Judge’s Decision, the leave to appeal application can only be related to the part of the decision where the Deputy Judge refused to extend time to allow the applicant to apply to judicially review the Board’s First Decision, which is an interlocutory decision.

27.On the other hand, as noted above, the applicant’s grounds advanced in the affirmation and the written submissions were mostly related to the Board’s Second Decision.  They should be more properly regarded as seeking to appeal against the Deputy Judge’s Decision concerning the Board’s Second Decision.  The part of the decision where the Deputy Judge refused leave to apply for judicial review against the Board’s Second Decision and the Director’s Decisions is not an interlocutory decision, and the applicant is entitled to appeal against it as of right.  However, by the time when the applicant took out the CA Leave to Appeal Summons, he was already out of time to appeal that part of the decision (which was made on 27 February 2019)[9].

28.Given the above circumstances, we are prepared to treat this application as both:

(1)  An application for extension of time to appeal against the Deputy Judge’s Decision insofar as it refused to grant leave to the applicant to apply for judicial review against the Director’s Decisions and the Board’s Second Decision[10]; and

(2)  A renewed application for leave to appeal against the Deputy Judge’s Decision insofar as it relates to his refusal to extend time for the applicant to apply for leave to judicially review the Board’s First Decision.

Legal principles

29.Before we deal with the out of time appeal and the leave to appeal applications, it is convenient to remind ourselves some principles relevant to their consideration.

30.First, the general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  Pertinent to the present applications, the principles are:

(1)  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.

(2)  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).

31.Second, the Deputy Judge’s refusal to grant extension of time to the applicant to apply for judicial review against the Board’s First Decision was interlocutory in nature, which requires leave before an appeal could be brought against such refusal: see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419 and section 14AA of the High Court Ordinance (Cap 4).

32.Section 14AA(4) further provides that no such leave to appeal shall be granted unless the court is satisfied that there is a reasonable prospect of success in the intended appeal, or that there is some other reason in the interests of justice that the intended appeal should be heard.

Discussion

33.We will first deal with the application to appeal against the Director’s Decisions and the Board’s Second Decision out of time.

34.It is well established that this court can exercise the discretion to extend the time to appeal after considering (a) the length of delay, (b) the reasons for the delay, (c) the chance of success of the intended appeal, and (d) the prejudice to the other party if time is extended.  See: MA [2019] HKCA 1020 at [15].

35.The applicant has said he was asked to seek leave from the Deputy Judge to appeal from the Deputy Judge’s Decision in the first place in the circumstances as described at [28(1)] and its footnote above. Giving him the benefit of doubt, we accept that he did not proceed to directly appeal against the Deputy Judge’s Decision relation to this part of the decision because of that reason.  As such, we are prepared to accept this to be a satisfactory explanation for the delay.  We will next consider the intended appeal’s chance of success.

36.In addition to matters stated in the written submission mentioned at [25] above, the applicant also set out in the affirmation filed in support of the CA Leave to Appeal Summons his grounds in support of the intended appeal as follows:

“4. It is one non-refoulement claim and I believe without exhausting all means at different stages of the process one should not seek leave to apply for judicial review as otherwise there would be duplicated claims in the High Court and it would be unjust.

5. Lack of high standard of fairness which includes failure to ensure communication is smooth and transparent; as well as the lack of assistance provided to self-represented litigant, which includes not referring my case to the Duty Lawyer Service and/or alternatively ensuring that the BOR 2 letter has been sent to me, and subsequently the failure to arrange a new screening interview on the assumption that I had no additional information to provide, should be addressed.

6. Board has erred in determining my Notice of Appeal without holding a hearing and by trying to justify the Department’s inaction through the wrong means. Additional facts should have been considered by the Director of Immigration, and only then can the Board decide on it as an Appeal.”

37.It can immediately be seen that the applicant was only repeating and re-submitting his grounds of judicial review advanced before the Deputy Judge as summarized by the Deputy Judge at [16] of the Deputy Judge’s Decision.  These grounds are directed at the decision making of the Board and the Directors.  He has therefore singularly failed to identify with any particularities the errors of the Deputy Judge’s Decision in rejecting all these grounds.  These are not viable grounds of appeal.  On this basis alone, the appeal against the Deputy Judge’s Decision in refusing the applicant leave to apply for judicial review against the Director’s Decisions and the Board’s Second Decision has no merit and should be dismissed[11].

38.We would however further highlight two matters.

39.First, it appears that the Deputy Judge in summarizing the applicant’s ground of review at [16] of the Deputy Judge’s Decision had not dealt with the applicant’s complaint of lack of language assistance deposed to at paragraph 5 of his affirmation in support of the Form 86.  Notwithstanding this, the Deputy Judge’s failure to address this ground is immaterial if the ground has no substance.  See: Usman Muhammad v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2019] HKCA 1404, per Kwan VP at [18].

40.In our view, the ground of lack of language assistance has no merit.

41.It is trite that the high standard of fairness required by law would not entail interpretation service being made available to an application all the time as he desires: see Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20]; Re Gurung Sagar [2019] HKCA 658 at [12].

42.In this respect, we note that the applicant did give answers and oral evidence respectively at the screening interview by the Director and the First Board Hearing[12]. Given that it is the applicant’s own position that he could not speak much English, it is clear that he had been provided with interpreters at the interview and the hearing.

43.Further, in the present case, all the court documents, including the affirmations filed in support of the leave application, the Summonses, and the written submission in support of this appeal were written in English.  These show that the applicant himself is able to understand English or, if needed, he is assisted by someone who can explain the documents in English to him[13].

44.There is therefore nothing in this complaint.

45.Second, the applicant complained (under his grounds 2 and 5 of judicial review) that in making the Board’s Second Decision to refuse him filing the notice of appeal late, it was procedurally unfair and unreasonable for the Board not to hold a hearing.

46.The Deputy Judge dealt with this complaint at [26] - [30] of the Deputy Judge’s Decision as quoted above.  He relied on section 12 of Schedule 1A of the IO and concluded that the Board had the power to refuse the applicant’s late filing without a hearing.

47.In our view, the relevant statutory provision should be section 37ZT of the IO.  Section 37ZT(1) of the IO requires the notice of appeal to include an application for late filing of the notice if it is out of time.  It must also include a statement of the reasons for failing to file the notice within time and be accompanied by any documentary evidence relied on in support of such reasons.  It further provides:

“(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.” (emphasis added)

48.Thus, it is a statutory prescription that the determination of a late filing of notice of appeal as a preliminary matter is to be made without a hearing.  In this respect, we also note from [13] - [14] of the Board’s Second Decision that the Board referred to paragraph 9 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme and stated that it must decide whether to allow the late filing of the petition without a hearing.  That quoted part of the guideline is directly adopted from section 37ZT of the IO.

49.Further, as explained above at [14] above, the Board in refusing to allow the applicant to file the notice of appeal out of time had legitimately taken into account the following:

(1)  The applicant’s unsatisfactory explanation for not receiving the Director’s Second Decision and the 17 May 2017 letter as stated in the notice of appeal.  See: [11], [16] - [17] of the Board’s Second Decision;

(2)  Although noting that the applicant had stated that he “really wished to submit additional facts and grounds”, the information provided at Section 2 “the Grounds of Appeal/Petition” in support of his intended appeal against the Director’s Second Decision was nothing but a re-hashing of his original claim and his oral evidence given in his appeal against the Director’s First Decision.  There was therefore nothing new in the applicant’s case.  See: [11] - [12] of the Board’s Second Decision;

(3)  The Board in the Board’s First Decision had already found that the applicant was unable to establish a necessary level of risk for the purpose of torture, inhumane treatment or persecution.  In the premises, for the same reasons, the applicant would and could not be able to establish a risk for deprivation of life under a claim based on BOR 2 based on the same evidence and information.  It would thus be pointless to allow the late filing.  See: [18] - [20] of the Board’s Second Decision.

50.The applicant’s main complaint under this ground for lack of an oral hearing seems to be based on the assertion that he indeed had further evidence or information that could be provided to support the BOR 2 risk claim.  Thus, he appeared to suggest that, if not because of the fact that he did not receive the Director’s letter dated 17 May 2017 as alleged, he would have provided additional information and evidence to the Director and the Board to support his claim.

51.This complaint however is without substance.  The burden is on the applicant to provide the Director and the Board any additional information and evidence he wished to rely on to support his claim based on BOR 2 risk.  At the very least, he should indicate the nature of the alleged additional information and evidence that he had purportedly wanted to put forward.

52.In the premises, even if he had not received the 17 May 2017 letter as alleged, there is simply no reason why he still did not provide, or at the least indicate the nature of, the alleged additional information and evidence (a) in his notice of appeal in support of his appeal to the Board out of time or, (b) at the latest, in the affirmations filed in support of his Form 86 and in the present applications.  The applicant therefore has failed to show what he could have advanced to the Board had there been an oral hearing.  In other words, he has failed to show what prejudice he had suffered by not having an oral hearing.  The failure to do so further underlines the Board’s conclusion in the Board’s Second Decision that his claim based on BOR 2 risk was premised all on the previously available information and evidence, and thus was without any merit.

53.Once considered in the above context, it is plain that there was no procedural unfairness for the Board to decide the applicant’s late filing of the notice of appeal without a hearing.

54.For all these reasons, the intended appeal has no arguable merits at all.  We will therefore refuse to extend time for the applicant to appeal against the Deputy Judge’s Decision in refusing leave for the applicant to apply for judicial review against the Director’s Decisions and the Board’s Second Decision.

The Deputy Judge’s decision in refusing to extend time to apply for judicial review against the Board’s First Decision

55.The Deputy Judge refused to extend time for the applicant to apply for judicial review against the Board’s First Decision because, as with the Board’s Second Decision, he found that the grounds of review against it had no reasonably arguable merits.

56.In his application for leave to appeal against this part of the Deputy Judge’s Decision, the applicant relied again only on the grounds as set out in his written submission and the supporting affirmation.

57.As mentioned above, these grounds are mere regurgitations of the same grounds advanced but failed before the Deputy Judge.  They are not viable grounds of appeal as the applicant has failed to identify any specific errors of the Deputy Judge’s reasons in rejecting those grounds.

58.In the premises, the intended appeal has no reasonable prospect of success.  There is also no other reason for the interests of justice that the intended appeal should be heard.  We therefore will refuse to grant leave to the applicant to appeal against this part of the Deputy Judge’s Decision.

Conclusion

59.For all these reasons, we will dismiss the CA Leave to Appeal Summons and the application to extend time to appeal against the Deputy Judge’s Decision relating to the refusal to grant leave to the applicant to bring judicial review against the Director’s Decisions and the Board’s Second Decision.

60.In relation to the application for leave to appeal, given that it is entirely without merit, we further order pursuant to Order 59, rule 2A(8) of the Rules of the High Court that no party may request this determination be reconsidered at an oral hearing inter partes and that the applicant may not request to have an oral hearing.

The applicant acting in person.