Re Hussain Shafaat

CAMP 414/2021

[2021] HKCA 1861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 414 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2395 OF 2018)

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Before: Hon Chu and Barma JJA in Court

Date of Judgment: 15 December 2021

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JUDGMENT

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

1.This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 16 July 2020 dismissing his application for leave to apply for judicial review.

2.The applicant has filed an affirmation and also lodged a written submission in support of his application (see [21] below).

3.Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 5 October 2018 refusing to accept the late filing of the applicant’s notice of appeal in respect of the decision of the Director of Immigration (“the Director”) rejecting his non-refoulement claim on the BOR 2 risk ground.

5.The applicant is a Pakistani national aged 35. He entered Hong Kong illegally and was arrested by the police on 13 October 2009. On 15 October 2009, he made a torture claim, which was processed as a non-refoulement claim upon the implementation of the Unified Screening Mechanism in March 2014. The applicant’s claim is based on fear of being harmed or killed by his relative arising out of a land dispute. The details of the applicant’s claim were set out in the Director’s decision at [6]. We will not repeat them.

6.By his decision dated 15 July 2014, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds. The applicant appealed the decision to the Board, which was dismissed on 17 December 2014 after an oral hearing.

7.By a written representation dated 11 August 2016, the applicant requested to make a subsequent claim for non-refoulement protection. By his decision dated 5 October 2016, the Director refused the request on the grounds that the applicant failed to show there had been a significant change of circumstances, or the subsequent claim had a realistic prospect of success.

8.By a further decision dated 25 October 2016, the Director assessed the claim on the BOR 2 risk[4] ground and decided against it.

9.Under section 37ZS(1) of the Immigration Ordinance, an applicant who wishes to appeal against the Director’s rejection of his claim must file with the Board a notice of appeal within 14 days after notice of the decision is given to him, unless late filing of the notice is allowed by the Board under section 37ZT(3). Section 37ZT(2) further provides that the Board must decide, as a preliminary decision without a hearing, whether to allow the late filing of the notice of appeal.

10.On 23 February 2017, the applicant sought to file a notice of appeal against the Director’s further decision, which was out of time by more than three months. By its decision dated 5 October 2018, the Board refused to allow the late filing of the applicant’s notice of appeal, having regard to long delay, the absence of reasonable excuse for the delay and the lack of merit of the intended appeal.

11.On 29 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision of 5 October 2018. In either the Form 86 or the supporting affirmation, the applicant did not provide any ground for seeking relief.

12.The Judge listed the application for an oral hearing on 6 September 2019, but the applicant was absent. The Judge therefore proceeded to deal with the application on the papers. By a Form CALL-1 dated 16 July 2020[5], the Judge refused the application for leave to apply for judicial review. The Judge’s principal reason was that the intended judicial review had no reasonable prospect of success, as there was no error of law or procedural unfairness in the Board’s findings and decision.

13.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 30 July 2020.

14.By a summons filed on 28 August 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on the papers and refused the application by a decision handed down on 21 July 2021[6].

15.On 28 September 2021, the applicant filed the present summons together with an affirmation to make a further application to this Court for extension of time to appeal.

16.In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

17.The applicant was late by four weeks when he filed the 28 August 2020 summons. The delay is not insubstantial. In the affirmation filed in the present application, the applicant explained that he did not receive the Court’s decision and after he searched the court file, he filed his application to appeal on the same day. We note from the court file that some of the court letters sent to the address stated in the Form 86 (which is the same address stated in the present summons) had been returned undelivered. We also note that the applicant did conduct a file search on 28 August 2020, the same day the application for extension of time to appeal was filed in the court below. In these circumstances, we are prepared to accept that the applicant’s explanation for the delay.

18.We turn next to consider the merits of the intended appeal. In this regard, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.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 this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20.In the present application, the applicant did not provide any ground in support of his intended appeal in either the summons or the affirmation.

21.On 7 October 2021, the applicant lodged a skeleton submission in which he stated that it will be dangerous for him to return to his country, he seeks non-refoulement protection because he fears for his life, and he has no faith in the Pakistani authorities. He also attached to the skeleton submission 23 pages of documents that set out a number of grounds for seeking relief, and quotations from various judgments dealing with the high standard of fairness and irrationality and also provisions of international covenants and local legislation. The relevance of these documents to the applicant’s application or intended appeal was, however, not explained. On 11 October 2021, the Registrar of Civil Appeals rightly directed that the skeleton submission would not be considered and that the applicant should lodge a proper set of written submission by 22 October 2021. The applicant however failed to comply with the directions.

22.In our view, even if we were to take into consideration what was stated in the skeleton submission dated 7 October 2021, the applicant has failed to show he has arguable grounds of appeal against the Judge’s decision. None of the matters stated in the submission has relevance to the Board’s decision, which refused to allow the late filing of the notice of appeal against the Director’s refusal of the claim on the BOR 2 risk ground. Nor do they show any error in the Judge’s decision to refuse leave to apply for judicial review.

23.As the applicant’s intended appeal against the Judge’s refusal of leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 28 September 2021.

The applicant, unrepresented, acted in person.