Re Khan Naveed Ahmed

CAMP 419/2021

[2022] HKCA 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 419 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 769/2018)

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Before:  Hon Yuen JA and Barma JA in Court

Date of Judgment:  25 February 2022

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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 DHCJ Josiah Lam (“the Judge”)  dated 7 March 2019 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 19 April 2018 (“the Board’s Decision”)  and the decisions of the Director of Immigration (“the Director”)  dated 16 March 2015 and 21 June 2017 rejecting the applicant’s non-refoulement claim (respectively “the Director’s 1^st and 2^nd Decisions” respectively).

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 27 October 2009, was subsequently arrested and handed over to the Immigration Department on 28 October 2009.  The applicant thereafter lodged a torture claim on 29 October 2009.

3.The applicant’s claim was based on a fear of being harmed or killed by a political rival should he be refouled.  The details of the applicant’s claim have been summarised by the Judge at [1] to [15] of his decision (“the CALL-1 Form”)[1].

4.By a Notice of Decision dated 16 March 2015, the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the torture risk[2], the persecution risk[3] and the BOR 3 risk[4].

5.By a Notice of Further Decision dated 21 June 2017, i.e. the Director’s 2^nd Decision, the Director also decided against the application’s claim based on the BOR 2 risk[5].

6.The applicant appealed to the Board.  After a hearing on 29 January 2018, the Board dismissed the appeal on 19 April 2018.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board was not satisfied that the applicant had been subjected to ill-treatment that attained the minimum level of severity required, and in any event considered that reasonable state protection was available to the applicant.  

The Judge’s decision

7.The applicant filed a Form 86 on 3 May 2018 seeking to judicially review the Board’s and the Director’s Decisions.  His primary complaint in his supporting affirmation was that he lacked legal representation in the determination process by the Director in reaching his 2^nd Decision.

8.After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [29] to [37] of the CALL-1 Form:

“29.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

30.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation 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.’

31.  The Applicant complained there was insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 16 March 2015. 

32.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

33.  The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters when he was represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. There was no evidence he complained to the Adjudicator that he had difficulty in preparing for the appeal. The Applicant had much exaggerated his language problem.

34.  The Applicant complained the Adjudicator had not made due consideration of his claim.

35.  The Adjudicator’s report showed the Adjudicator had attended to all aspects of the Applicant's case. He had also referred to relevant COI for proper understanding of the situation in Pakistan.

36.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

37.  The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

The present application for extension of time to appeal

9.The applicant’s address as stated in his Form 86 was at Hai Tan Street, Sham Shui Po, Kowloon (“the HTS Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the HTS Address on 7 March 2019, and were not returned undelivered.

10.Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. 

11.The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 7 March 2019.  He did however on 17 February 2021, nearly 2 years after the date of the Judge’s decision, take out a summons in the Court of First Instance seeking extension of time to appeal, in which his address was stated to be in Shek Kip Mei, Sham Shui Po (“the SKM Address”).  In his supporting affirmation filed on the same date, the applicant claimed that he “did not get any information to cancel [his] JR”.

12.On 16 June 2021, by a letter sent to the applicant at the SKM Address, DHCJ To directed the applicant to file an affirmation setting out, inter alia, the circumstances in which he had come to know about the Judge’s order dated 7 March 2019, an explanation for the delay in bringing the extension of time application and the date of change of his address.  No such affirmation was filed by the applicant.

13.The applicant’s application to appeal out of time was dismissed by DHCJ KW Lung on 23 September 2021[6].

14.By a summons filed on 4 October 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he “did not get any letter from the High Court” (which we understand to be a reference to the sealed order of the Judge dated 7 March 2019 and the CALL-1 Form)  and thus he did not lodge the intended appeal in time.

15.In his written submissions dated 18 October 2021, the applicant merely repeated the “political problem” in his country and set out the procedural background to these proceedings.  He stated that he had “[his] objection about the High Court judgment”, without stating any particulars or grounds.

Discussion

16.Having considered the papers and the applicant’s written submissions, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.The applicant alleges that he did not receive the CALL-1 Form or the Judge’s sealed order within 14 days of the decision. 

18.In breach of DHCJ To’s directions, the applicant failed to proffer an explanation for the substantial delay in bringing the extension of time application, or to state the date of his change of address and whether such change was communicated to the court.

19.According to the court record, the applicant did not inform the court of his change of address.  It was incumbent upon the applicant to promptly inform the court of any changes in his correspondence address, particularly when there was a pending judgment in proceedings to which he was party.  Having failed to do so, the consequences are for him to bear.

20.In the circumstances, particularly in light of the substantial delay in bringing his extension of time application in the court below, we do not consider that the applicant has provided any reasonable explanation for the delay in lodging his intended appeal.

21.We have nonetheless proceeded to consider the merits of the intended appeal.

22.The applicant did not, whether in the Form 86 or the accompanying affirmation, point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to the basis on which this Decision could be said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

23.The applicant has failed, in his written submissions or otherwise, to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.  As this court has repeatedly stated, an appeal is not to be treated as a renewed application for leave to bring a judicial review, and it is essential for an applicant to identify relevant errors in the judgment of the court below.  

24.Regarding the applicant’s complaint that he was not legally represented in the determination process by the Director in reaching his 2^nd Decision, it is well-established that the high standards of fairness applicable do not require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

25.For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal, and the summons filed on 4 October 2021 is accordingly dismissed.

The applicant acting in person