Re Hassan Waleed

CAMP 224/2020

[2021] HKCA 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 224 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 307/2018)

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Before: Hon Chu JA and Barma JA in Court

Date of Judgment: 21 May 2021

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J U D G M E N T

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

1.This is an application for extension of time to appeal against the decision of Campbell-Moffat J given on 30 June 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 12 January 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 15 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 31 October 2013 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 7 November 2013. 

3.The applicant’s claim was based on threats from his uncle arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.

4.By a Notice of Decision dated 15 February 2017 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 10 November 2017, the Board dismissed the appeal on 12 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [55] of the Board’s Decision, the Board considered, among other matters, the fact that nothing happened between the applicant and his uncle during the four months before the applicant’s departure from Pakistan and concluded that his uncle did not intend to cause him serious harm.  The Board also found at [45] that there is insufficient evidence to suggest that his uncle had any influence on the Pakistani police.  The Board was also satisfied at [44] that there was nothing to suggest that the Pakistani government would deliberately withhold state protection from the applicant.

The judge’s decision

7.The applicant filed a Form 86 on 27 February 2018 which contained no ground for seeking relief.

8.In his affirmation in support of the leave application dated 27 February 2018, the applicant advanced the following grounds for judicial review:

(1)  the Director had doubts about his evidence but never invited him to clarify the issues in writing or in person;

(2)  the applicant did not have any legal representation when his claim was before the Board.  He was given a significant amount of materials but he did not know how to read them;

(3)  the Board’s Decision was never translated to him.  He had to rely on his friends whose command of English was only slightly better than his.

9.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [15] of the CALL-1 Form:

“10. There were outline grounds of review. He maintains that the process was unfair; no one interpreted the materials, he had no legal representation and the interpreter only interpreted that which the Adjudicator wished him to interpret. He was stressed and did not understand the proceedings. It was also a long time ago and he had a poor recollection of events. The applicant also asks for a re-hearing of his appeal. He has not complained of any specific procedural irregularity, unfairness or unreasonableness save for lack of legal representation and the poor quality of interpretation. I am not sure how he would know that the interpretation was of poor quality unless he spoke English to a better standard than he suggests. The facts covered by the interpretation were of the most basic kind. I doubt that there was room for a misunderstanding. 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.

11. As to the issue of legal representation, the applicant was represented by the Duty Lawyer Service before the Director, or would have been if he had attended as planned. He had the benefit of that legal advice for the presentation of his case, which was ultimately considered on the papers because of the conduct of the applicant and he does not suggest that anything was missing or had yet to be added. Having been unsuccessful at that stage, the Director of Legal Aid considered whether his case had sufficient merit to grant him further representation before the TCAB and decided it did not. That is not surprising. There is no absolute right to free legal representation at all stages of proceedings. The applicant already had the benefit of legal representation before the Director (if he had availed himself of it) and had nothing to add before the Adjudicator over and above the answers he gave to the questions posed.

12. As to language assistance, the applicant had the benefit of an interpreter throughout. He did not make any complaint about the lack of interpretation or lack of understanding at the time and all of the relevant areas were canvassed with him. There is no merit in this ground.

13. As for his poor recollection of events, that did not prejudice the applicant as he had all of the facts contained within the papers before the Adjudicator. There were very few applicable facts. This was not a complicated case. The delay was to be placed at the door of the applicant in any event.

Conclusion

14. Despite the fact that the applicant did not submit any formal grounds of review, I have considered the papers and his general grounds carefully. In particular, I have considered his claim as to lack of proper interpretation, which I have addressed above. I have not found any error of law or procedure by the Adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; enquired about all relevant matters; gave the applicant a reasonable opportunity to state his case and enquired into inconsistencies appropriately. There is no criticism of his determination, which was open to him on the facts and reasonable.

15. 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.”

Application for extension of time to appeal and grounds for appeal

11.Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 28 August 2020, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 13 November 2020.

12.By a summons dated 30 November 2020, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“…[the judge] refused my judicial review but I do not agree with the judge. I did not get the decision timely, so I applied to extension of time, so it should be apply for the Court of Appeal”

13.In his skeleton submission dated 11 February 2021, the applicant submitted that it is unsafe for him to return and that he sought leave to appeal to this court to save his life and for justice.  On 24 February 2021, the applicant filed another written submission which largely repeated the matters raised in the submission dated 11 February 2021, and to which was attached a submission which cited a number of well known authorities and principles but without explaining how they applied to his case.  The latter document also was directed to the decisions of the Board and the Director, rather than that by the judge.

Discussion

14.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

15.We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  The applicant claimed that he “did not get the decision timely” without explaining why that was the case.  We agree with the observation by the judge at [6] of her decision dated 13 November 2020 that this was not a valid excuse for the delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

16.The only ground of appeal is that it is unsafe for him to return.  The applicant claimed that the judge was wrong in dismissing his leave for judicial review application but he did not identify any error on the part of the judge.  The applicant has therefore failed to advance any viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  

17.In any event, having examined the judge’s decision and the Board’s Decision, we can see no public law error in the conclusion by the Board that the applicant’s uncle is unlikely to cause him any of the proscribed harms upon his return and that there is nothing to suggest that the Pakistani government would not afford him protection.

18.We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 30 November 2020 is dismissed accordingly.

19.We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant acting in person