Re Ahmed Sajjad

CAMP 289/2019

[2020] HKCA 733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 289 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1201 OF 2018)

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J U D G M E N T

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

Introduction

1.On 6 May 2019, by way of a decision (“the Deputy Judge’s Decision”) set out in Form CALL-1 ([2019] HKCFI 1122), Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant extension of time for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 26 January 2018 (“the Board’s Decision”).

2.In the Board’s Decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated respectively 12 February 2016 (“the Director’s First Decision”) and 24 March 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

3.The Director’s First Decision and the Director’s Second Decision would be referred to collectively as “the Director’s Decisions”.

4.Under the law as it then stood, the applicant was required to obtain leave under section 14AA of the High Court Ordinance (Cap 4) before he could appeal the Deputy Judge’s Decision.  The deadline for him to take out the leave application expired on 20 May 2019[1]. On 8 August 2019, the applicant sought leave to appeal the Deputy Judge’s Decision.  He was more than two months out of time.

5.On 4 November 2019, the Deputy Judge refused to grant extension of time to the applicant as the intended appeal had no reasonable prospect of success [2019] HKCFI 2493[2].

6.By a summons dated 13 November 2019, the applicant renewed his application for leave to appeal before this Court.  In the summons, the applicant listed the Deputy Judge’s decision dated 4 November 2019 as decision under challenge.  Whilst it is technically possible to appeal against a lower court’s decision in refusing an extension of time for appealing, it is more straightforward and economical to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8].  Thus, we will treat the applicant’s summons as against the substantive decision of the Deputy Judge, ie, the Deputy Judge’s Decision.

7.Nevertheless, on 14 July 2020, the Hong Kong Court of Final Appeal handed down the decision of H v Director of Immigration [2020] HKCFA 22, in which leave under section 14AA is no longer required.  However, the applicant still has to bring his application within 14 days as prescribed under Order 53, rule 3(4) of the Rules of the High Court (Cap 4A) (“the RHC”).  Thus, by the time the applicant took out the summons of 13 November 2019 before this Court, he was already out of time to appeal the Deputy Judge’s Decision (dated 6 May 2019)[3].

8.Given the above circumstances, we are prepared to treat the present application as an application for extension of time to appeal the Deputy Judge’s Decision.

Background

9.The applicant is a national of Pakistan.  He entered Hong Kong on 25 July 2002 on the strength of his passport and was allowed to remain until 8 August 2002.  He overstayed and was arrested by the police on 7 February 2006.  He was deported to Pakistan on 5 May 2006 but later re-entered Hong Kong in around February 2014.  He was again arrested in September 2014.  He lodged a non-refoulement claim by way of a written representation on 27 November 2014.

10.The applicant’s claim was based on the fear that, if he was returned to Pakistan, he would be harmed physically and / or mentally by Jamil Akhtar Aziz (“Jamil”) and his associates including Zulifqar, alias, Dilli (“Dilli”).  The factual background was summarized at paragraphs 5 ‑ 6 of the Director’s First Decision and paragraph 20 of the Board’s Decision.

11.Briefly stated, the applicant claimed that the story began in 1994 when his father-in-law’s close friend Bilal was murdered by Jamil, an influential member of the Pakistan Muslim League (Q).  His father‑in‑law assisted in the investigation and court proceedings of Bilal’s murder. However, Jamil was subsequently acquitted.  In 1998, his father‑in‑law was murdered by Jamil who was again acquitted by the local court.  The applicant arranged lawyers and paid legal fee for his mother‑in‑law’s appeal to the higher court. He was then threatened by his cousin Awazrash, who worked for Jamil, that he should not pursue the appeal further.  In order to avoid being harmed by Jamil, in around 2002, the applicant decided to leave for Hong Kong.  However, when he was deported back to Pakistan in 2006, he heard that Jamil was still looking for him and hired someone to kill him because the applicant continued to support his father-in-law’s case to the local supreme court.  In 2010, Awazrash was killed during a scuffle and the applicant was arrested by the local police for murdering Awazrash.  The applicant was ill-treated both physically and mentally during his two-week detention in the police station.  Although he was subsequently acquitted of murder, the applicant received death threat from Jamil.  Since his release, he heard that Jamil was determined to kill him.  Out of fear, he fled to Hong Kong again.

The Director’s Decisions and the Board’s Decision

12.By way of the Director’s Decisions, the Director assessed the applicant’s claim on all applicable grounds and determined the claim against him.  The Director’s First Decision covered the BOR 3 risk[4], persecution risk[5], and torture risk[6], and the Director’s Second Decision assessed the BOR 2 risk[7].

13.The applicant lodged an appeal to the Board against the Director’s Decisions.  An oral hearing was held on 19 June 2017.  After hearing the applicant, the Board did not find the applicant to be a truthful witness.   The Board took the view that the applicant’s case was built on hearsay evidence and some of the evidence were pure speculation.  In particular, the Board concluded that: (a) the applicant’s assertions in relation to the three murder cases were based on hearsay evidence; (b) though the threat from Jamil might be probable, it remained a verbal threat without Jamil causing any physical harm to the applicant; and (c) the claim that Jamil controlled the police was a mere speculation without evidential basis and, even if there was misconduct from some police officers, they did not represent the whole Pakistani police force (paragraphs 21 - 44 of the Board’s Decision).  In any event, internal relocation was available to the applicant (paragraphs 59 - 64 of the Board’s Decision).  As a result, the Board dismissed his appeal.

The Deputy Judge’s Decision

14.On 26 June 2018, the applicant filed his Form 86 (dated 15 May 2018) seeking leave to apply for judicial review against the Board’s Decision.  However, he did not advance any grounds of review but simply stated in his supporting affirmation that he was not satisfied with the Board’s Decision.

15.The applicant did not request an oral hearing.  Having considered the documents available before him, the Deputy Judge refused to grant extension of time to the applicant to apply for judicial review against the Board’s Decision.  He set out his reasons at paragraphs 21 - 26 of the Deputy Judge’s Decision:

“21. The applicant was by then in fact out of time with his application, as Order 53 rule 491) of the high Court Ordinance, Cap. 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

22. In the Applicant’s case, the three-month period within which he was to file his Form 86 expired on 26 April 2018, and hence he was late by 2 months with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 1 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

23. A delay of 2 months cannot be said to be insignificant, for which the applicant did not provide any explanation in his Form or his supporting affirmation or otherwise, nor as noted above did he put forward any grounds for his intended challenge of the Board’s decision, and in the absence of which I am unable to see any good reason for his such delay or any merits or prospect of success in his intended application.

24. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, the Board was entitled to find no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

25. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

26. In the premises and for these reasons I am not satisfied that there is any realistic prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his leave application.” [sic]

Application for leave to appeal under the old legal regime

16.On 8 August 2019, the applicant took out a summons to seek leave to appeal the Deputy Judge’s Decision.  In the grounds attached to his summons, the applicant complained that the Director and the Board reached the decisions wrongly, that the Director had failed to give proper weight to the issue of state acquiescence, that the Director failed to give weight to the country of origin information that favoured the applicant and that the Director failed to adhere to high standard of fairness.

17.The Deputy Judge heard the applicant on 13 September 2019.  After the hearing, the Deputy Judge refused to grant extension of time to the applicant on the basis that the applicant’s explanation for the significant delay was not acceptable and that the proposed grounds of appeal had no prospect of success.

The present extension of time application before this Court

18.The applicant took out the summons on 13 November 2019 before this Court.  In the supporting affirmation filed on the same date, the applicant said that he was unrepresented and thus was without legal assistance.  He also said that there was a good ground of appeal but failed to provide any particulars on the asserted good ground.

19.In the written submissions lodged on 9 December 2019, he quoted some passages from ST v Director of Immigration[8] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submissions further referred to section 37ZT of the IO, and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and the accompanying evidence, as well as other relevant matters of fact within the Board’s knowledge.  However, the applicant did not further elaborate how the section could assist his case.

Legal principles

20.As mentioned above, pursuant to Order 53, rule 3(4) of the RHC, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted.

21.In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal, see: Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Re Ansar Muhammad [2018] HKCA 227; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

22.In assessing the prospect of success of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases discussed in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

23.For the purpose of this application, we only need to highlight the following salient principles:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  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.

(3)  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 RHC.

Discussion

24.At the outset, neither the applicant’s summons or his supporting affirmation explained the reason for his delay.  As mentioned above, without a satisfactory explanation for the delay, the applicant has to satisfy this Court that his intended appeal has real prospect of success before extension of time is granted: Re Kasirah [2020] HKCA 468, per Yeung VP at [17] - [18]; Caramat Virginia Lobeban & Ors v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 276, per Kwan VP at [12] - [14]; Re Mohammed Roni Khan [2020] HKCA 66, per Chu JA, at [14].

25.In our view, the applicant failed to show that his intended appeal has prospect of success, let alone a real one.

26.First, the only ground advanced by the applicant was that he was without legal assistance.  However, this ground was not argued before the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments which have not been canvassed at the court below would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

27.Second, the applicant’s written submissions also do not assist him.  Other than making general and bare assertions that the decision makers did not adhere to the high standard of fairness, the applicant had failed to identify with sufficient particularities as to why the Deputy Judge was wrong in his reasons.  The applicant’s reference to section 37ZT of the IO is also irrelevant. These are also not viable grounds of appeal.

28.Finally, the applicant’s claim that there was a good ground of appeal is a bare assertion without substance.

29.The intended appeal therefore has no merits at all.  In any event, after reviewing the Deputy Judge’s Decision, we are of the view that the Deputy Judge was right in refusing to grant extension of time to the applicant because of lack of merits in the intended application for judicial review, coupled with the significant unexplained delay.

30.Further, we note that the applicant filed an affirmation on 15 May 2020 at the court below that he wanted to return to his home country because his problem there had been solved.  In the premises, there is a fortiori no basis for the applicant’s application to be considered.

31.Accordingly, we dismiss the applicant’s summons.

The applicant acting in person