Re Akter

HCAL 1721/ 2018

[2020] HKCFI 2870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1721 of 2018

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DECISION

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Background

1.On 18 June 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant leave to 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 10 August 2020. The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 29 March 2017 rejecting the applicant’s non-refoulement claim.

2.The Judge refused to grant leave to the applicant to apply for judicial review for reasons stated in [14-18] of his decision (Form CALL-1). Significantly the Judge found in his conclusion that the applicant’s intended application for judicial review had no reasonable prospect of success.

3.By a summons filed on 6 July 2020, the applicant applied for extension of time to appeal against the Judge’s refusal of leave.  The applicant had 14 days from the order of the Judge to apply to appeal that decision to the Court of Appeal.  He did not do so.  He now requires leave to extend time to appeal against that order out of time. The 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court ended on 2 July 2020.  He was therefore late by 4 days with his intended appeal. 

4.In his summons and supporting affirmation, the applicant did not provide any draft or proposed grounds of appeal, or particulars of errors or unfairness of the Judge. He stated that there is an error because he was unable to submit his document (to the Board) in time. He had submitted his document to the Immigration Department but they disregarded it. He requested an oral hearing for him to explain his case.

5.At the hearing of the summons, he said his application was late because he had to ask for help from a friend to understand the Judge’s order. When asked to provide reasons for his appeal and errors of the Judge’s decision, he said everything he wanted to say had been written in his documents.

Discussion

6.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

7.Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.  

8.On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

9.In the present case, the applicant was late by 4 days.  As the delay was not significant, I would therefore proceed on the basis that the delay is excusable and focus on the more important issue of the merit of the intended appeal.

10.In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 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.  Assessment of evidence and evaluation of risk 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. 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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

11.In his decision dated 18 June 2020, the Judge noted that the applicant in his affirmation in support of the application for judicial review said that he was unable to produce the documents to the Board. However, he did not set out the grounds of review, nor did he say what error the Board had committed. The Judge recorded that at the hearing he declined to consider documents that the applicant asked him to look at as the applicant provided no reasons why he was unable to obtain the documents before he attended the Board and the relevance of those documents to his case. The Judge saw no reason that the court should usurp the Board’s function of investigation of the facts of his case.  He found that there was nothing to show that the Board had committed any error in its application of the law or in coming to its conclusion on the facts of the case. The applicant was unable to show that his intended application for judicial review had any reasonable prospect of success.

12.As mentioned, 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. In the absence of good reasons why the documents could not be submitted to the Board and their relevance to the case, the Judge cannot be faulted in refusing to consider new documents not submitted to the Board. In any event, I have considered the “Blood Test Report” dated 25 December 2003 attached to the applicant’s supporting affirmation. Presumably it is the new document he regarded as important and wanted the court to consider. However, I fail to see how the old blood test report can assist his case.

13.In the present case, the Board’s decision was based on its adverse findings on the credibility of the applicant. On the evidence before the Board, the findings were plainly open to the Board. Such findings were within province of the Board (and the Director) not to be interfered with, without errors or irrationality or procedural unfairness found by the Judge. The Judge properly reviewed the decision of the Board with rigorous examination and anxious scrutiny, he could not find any public law grounds that warrant the court’s interference with the decisions.

14.The applicant has not identified any grounds of appeal or errors in the Judge’s decision.  None could be ascertained from the papers or at the hearing.

15.Having considered the materials before me, I am of the view that the findings by the Board on the lack of credibility of the applicant and the Judge’s observations are justified.  I share the Judge’s view that the applicant’s claim for judicial review was not reasonably arguable and that leave to apply for judicial review should be refused. 

Conclusion

16.I cannot see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. Accordingly, I refuse to grant any extension of time, and the summons dated 6 July 2020 taken out by the applicant is dismissed.