Re Nazakat Khan

CAMP 83/2020

[2021] HKCA 30

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 83 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 890 OF 2017)

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Before:  Hon Yuen and Barma JJA in Court

Date of Written Submissions:  12 August 2020

Date of Judgment: 12 January 2021

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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 19 May 2020, Campbell-Moffat J (“the Judge”) refused to give the applicant leave to apply for judicial review proceedings concerning his non-refoulement claims (“the JR Decision”). 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. The deadline was therefore 2 June 2020.

2.Two days later, on 4 June 2020, the applicant filed a summons in the Court of First Instance (“CFI”) for extension of time to appeal.  That summons was dismissed by the Judge on 18 June 2020.  

3.By summons filed in CAMP 83/2020 in the Court of Appeal on 6 July 2020, the applicant applied to this court for an extension of time to appeal the JR Decision.   

4.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. The applicant filed his written submissions on 12 August 2020 pursuant to the directions given by the Registrar of Civil Appeals.     

Background

5.The applicant is a national of Pakistan. His allegations are as follows.  In May 2015 in Pakistan, he injured H in a motorcycle accident.  He was then attacked and threatened by a group of people by way of revenge, and he believed this was instigated by H’s uncle CS.  He did not report the attack on him to the police as he believed that CS was connected with the political party PMLN and was able to control the police, being an elected representative of the H union council.  The applicant went to stay in other areas in Pakistan.  He alleged that in the meantime, the police arrested his uncle for the motorcycle accident as he (the applicant) was not at home, and the uncle was found dead a few months later.  The applicant claimed he was in fear and departed Pakistan.  He entered Hong Kong illegally by boat on 18 March 2016.  He was arrested by the police the same day and raised his non-refoulement claim on 22 March 2016.      

6.His claims having been rejected by the Director of Immigration, he lodged an appeal/petition to the Torture Claims Appeal Board/adjudicator (“TCAB”).  He appeared before the TCAB on 8 September 2017.  His claims were rejected by the TCAB on 22 September 2017 (“the TCAB Decision”).  Essentially the Board found that the applicant’s claims were not credible.  Not only were they only bare assertions, there were serious inconsistencies (eg whether he was insured, and thus whether the police were therefore entitled to prosecute him for the accident).  Further his allegations about CS’ position in the union council he named were contradictory to objective evidence, which he did not challenge [25, 26, 36, 42, 47, 48].  The TCAB found that there was no evidence showing state acquiescence or consent by any public official [45-61]. His claims under the grounds of persecution risk [64, 78], BOR2 risk [67, 79], BOR3 risk [70, 80] and torture risk [73, 81] were rejected on the facts.    

Application for leave to start judicial review

7.On 15 November 2017, the applicant filed a Form No. 86 to apply for leave to judicially review the TCAB Decision.  However, no grounds were advanced.  In his supporting affirmation, he said only that he needed time to obtain evidence to prove his claim that his life would be put in danger if he were repatriated to Pakistan.  The alleged evidence was not specified.  As he did not request an oral hearing, his application was disposed of on paper.

The JR Decision

8.As mentioned earlier, the Judge refused leave for reasons set out in [9] - [12] of the Form CALL-1 ([2020] HKCFI 854):

“Leave to apply for judicial review

9.   Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the decision of the Adjudicator.  The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10.   There were no actual grounds of review save for a complaint that the Adjudicator had come to a wrong conclusion in law as to his credibility and he supported that with a re‑submission of his case.  The applicant essentially seeks a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.   Despite the fact that the applicant did not submit any proper grounds of review, I have considered the papers, and what grounds there are, carefully.  I have not found any error of law or procedure by either the Director or Adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  The applicant does not appear to have complained about the manner in which he was dealt with by the Director.  He had ample time to adduce additional evidence before the Adjudicator if he wished to rely upon it and his legal representative before the Director could have made submissions about that evidence if he had been instructed to do so.  His detention within Castle Peak Bay Immigration Centre did not preclude him communicating with his family if he had wished to obtain further evidence, although on the facts, I do not see this would have advanced his case under the regime.  Despite the onus being upon the applicant, the Adjudicator nevertheless engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately.  The difficulty the applicant faced was that his case did not stand up to scrutiny.  There is no criticism of the determination of the Adjudicator, which was open to her on the facts and eminently reasonable.

12.   In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

9.The applicant then applied to this court for an extension of time to appeal.  However, again no proposed grounds of appeal against the JR Decision were provided.    

Legal Principles

10.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 absence of prejudice does not mean that an extension should be granted).

Discussion

11.As for (1), the delay between the JR Decision and his summons to the CFI was 2 days.  His delay was not substantial.

12.As for (2), he explained to the Judge at the hearing of the summons in the CFI that he was late filing a notice of appeal because he had moved address.  This was inconsistent with his supporting affirmation in which he said his delay was due to his lack of knowledge and insufficient (re)sources.  In the applicant’s affirmation filed in this court, he repeated the latter reason. 

13.Be that as it may, the most important consideration is (3) the prospect of success of the intended appeal.  The applicant failed to provide any valid grounds of appeal.  In the applicant’s written submissions, he merely repeated his allegations that he would be killed if he returned to Pakistan.  His submissions were general and unsubstantiated.  There were no references to the evidence which he claimed he was going to obtain in the affirmation in support of the JR application.  It is well-established that the application for leave to start judicial review is not a rehearing by the judge of the TCAB proceedings, and the function of this court is to consider any alleged errors on the part of the judge.  He has not identified any.      

14.Given that the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 6 July 2020.

15.Since the present application is totally without merit, we further make an order under Order 59 r.2A(8) RHC that the applicant may not request our determination to be reconsidered at an oral hearing. 

The applicant, unrepresented, acting in person.