Re Hussain Shabbir

CAMP 54/2022

[2022] HKCA 1313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 54 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2635 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  8 September 2022

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J U D G M E N T

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

1.By a summons filed on 16 February 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 28 April 2021 refusing his application for leave to apply for judicial review ([2021] HKCFI 1090)  (“the Leave Decision”). By a subsequent judgment dated 9 November 2021, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2021] HKCFI 3179)  (“the EOT Decision”).

2.The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 12 November 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 23 February 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.The applicant is a national of Pakistan.  He was arrested by the police on 18 January 2016 and claimed he entered Hong Kong illegally from China on the same day.  On 22 January 2016, he lodged a non-refoulement claim on the basis that owing to a land dispute, he feared he would be subjected to ill-treatment or be killed by his uncle and people related to the Pakistan Muslim League (N)  (“PML-N”).  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] and [5] of the Leave Decision.

5.By a Notice of Decision dated 23 February 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.On 9 March 2018, the applicant appealed against the Director’s Decision to the Board.  He attended an oral hearing on 12 June 2018 before the Board and gave evidence.  On 12 November 2018, the Board dismissed his appeal.  Having assessed the evidence, the Board did not accept that the applicant or his family were involved in a land dispute.  The Board also did not accept that the applicant’s uncle or anyone related to PML-N had any adverse interest in the applicant.  The Board did not accept that the applicant would be harmed or killed or have false cases made against him upon his return to Pakistan. Accordingly, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.On 22 November 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision[5]. The applicant did not specify any ground of review in his Form 86 and in his supporting affirmation.  He only stated that his life would be in danger in Pakistan.

8.By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out in detail at [12] - [17] of the Leave Decision:

“2. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.… …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.’

14. His ground in support of this application does not assist his application.

15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The EOT Decision

9.Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.On 15 October 2021, the applicant filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over five months late with his intended appeal.  In his supporting affirmation, he claimed he did not receive the Leave Decision.

11.By the EOT Decision, the Deputy Judge noted that according to the court record, the Leave Decision was sent to him by letter dated 28 April 2021 at his last known address.  The Deputy Judge considered that the applicant failed to raise any valid ground demonstrating any error in the Board’s Decision or the Leave Decision.  Accordingly, as there was no realistic prospect of success in his intended appeal, the Deputy Judge dismissed his application for extension of time to appeal.

The Present Application

12.By a summons and supporting affirmation both filed on 16 February 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, he requested for extension of time to appeal without providing any ground in support of his application.  In his supporting affirmation, he claimed that he was late as he did not receive the Leave Decision.

13.Pursuant to the directions made by the Registrar of Civil Appeals on 16 February 2022, the applicant lodged his written submissions on 1 March 2022.  In those submissions, he repeated the alleged factual basis and procedural history of his non-refoulement claim.  He also alleged that the Court did not read his claim and the Board did not provide him with legal representation and failed to give him a good interpreter.  He further claimed that the Board did not give him enough time to submit documents.

Discussion

14.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.We consider that the applicant’s delay of five months as very substantial and the applicant simply failed to give any good reason for his delay.  In any event, it is the duty of a litigant to give the Court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: see Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].  Accordingly, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

16.The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

17.As a start, general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal.  More importantly, his complaints were mainly directed at the Board’s Decision and nowhere in the summons or supporting affirmation for the present application did the applicant identify any error in the Leave Decision with specific particulars.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

18.As to the allegations against the Board concerning the lack of legal representation and good interpreter and failing to give him enough time to submit documents, these are new allegations not raised before the Deputy Judge.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and which have not been canvassed at the Court of First Instance: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Accordingly, we will not consider his new arguments.

19.In any event, his allegations are wholly without merit.  It is well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  It is also trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he may desire: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  As a matter of fact, the applicant never raised any complaint before the Board in relation to the quality of the interpretation services provided or that he required more time to submit documents to the Board.  Even until now, the applicant failed to specify with details what further documents he intended to submit.  His allegation that the Deputy Judge failed to read his claim was also lacking in particulars and thus wholly without basis.

20.For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 16 February 2022 is dismissed.

The applicant acting in person