Re Mohammed Sabir

CAMP 11/2021

[2021] HKCA 1227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 11 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1576 OF 2018)

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J U D G M E N T

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The Court:

1.This is an application for extension of time to appeal against the decision of Campbell-Moffat J given on 23 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 (“the Board”) dated 21 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 31 October 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India.  He entered Hong Kong on 2 December 2014 as a visitor and was permitted to remain until 16 December 2014.  He overstayed and was arrested on 8 January 2015.  He lodged a non-refoulement claim on 10 January 2015. 

3.The applicant’s claim was based on threats from a man known as Gupta.  According to the applicant, he and Gupta operated a business and Gupta blamed the applicant for losing money in the business.  Gupta was a politically-connected person and he had threatened to kill the applicant.  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 31 October 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 18 April 2018, the Board dismissed the appeal on 21 June 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [54] of the Board’s Decision, the Board found that the applicant’s case was not truthful and should be rejected in its entirety.  The Board was also satisfied at [47] that state protection against persecution by non-state actors would be available for the applicant and at [71] that internal relocation would be viable.

The judge’s decision

7.The applicant filed a Form 86 on 8 August 2018 which contained no ground for seeking relief.

8.In his affirmation in support of the leave application filed on 8 August 2018, the applicant deposed that he did not agree with the decisions by the Board and the Director.  He explained why it would be dangerous for him to return and asked the court to look into his case.

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 grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [12] of the CALL-1 Form:

“10. There were no grounds of review save for a complaint that the decision was unfair. The applicant 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 grounds of review, I have considered the papers and single ground carefully. There was no merit in the factual basis of the claim even if it had been believed. It was not. I have not found any error of law or procedure on the part of the Adjudicator. I see no evidence of procedural unfairness by him 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; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him 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.”

Application for extension of time to appeal and grounds for appeal

11.Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 10 July 2020, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 3 August 2020.

12.By a summons filed on 11 January 2021, 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 leave application. I do not satisfy with her decision he did not find any error of law and [the Director and the Board] did not find any problem, but my life is finished”

13.In his affirmation of the same day filed in support of the application, the applicant deposed that:

“[the judge] refused my appeal. I want challenge his decision.”

14.In his skeleton submissions dated 9 March 2021, the applicant submitted that he is a Muslim and the Hindu community in India is against him.  It is not safe for him to return and he requests this court to allow his application to save his life.

Discussion

15.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.

16.In the documents filed for the application before us, the applicant did not give any explanation for his delay in bringing the intended appeal.  In the documents filed in the court below for the extension of time application, the applicant offered two inconsistent explanations.  In the summons filed on 10 July 2020 he claimed that he “got this judgment 09-July-2020.  Though this is my wrong.  I request to give me one more chance”.  In the affirmation filed on the same day, he claimed that he did “not find the judgment in my mail box”.  The applicant did not explain the inconsistent versions of event in any of the documents filed for the applications to extend time.

17.We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.

18.We nonetheless go on to consider the merits of the intended appeal.

19.The applicant only claimed that he was not satisfied with the decision by the judge but he did not identify any error on the part of the judge.  He 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.  In any event, having examined the judge’s decision, we can see no error in it.

20.As for the bare assertion by the applicant that it is unsafe for him, this is not itself a valid ground for judicial review or ground of appeal.  In any event, we note that the Board dismissed his claim for protection on the ground that his case was not truthful and that he did not face the alleged threats. Because the applicant failed to substantiate any public law error in the Board’s Decision, there is nothing to challenge the finding by the Board in this respect.

21.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 filed on 11 January 2021 is dismissed accordingly.

22.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, unrepresented, acting in person