RE HASMI RIZWAN IMRAN

CACV 79/2018

[2020] HKCA 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 79 OF 2018

(ON APPEAL FROM HCAL 706/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 18 August 2020, the Applicant applied by a Notice of Motion for leave to appeal to the Court of Final Appeal (“CFA”) against this Court’s judgment of 26 July 2018. In that judgment, we refused leave to appeal, and struck out and dismissed the Applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) on 16 March 2018.

2.  Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the Ordinance”), an appellant has 28 days from the date of the judgment of the Court of Appeal to seek leave to appeal to the CFA against it.  In the present case, taking account of summer vacation, the time for the Applicant to seek leave to appeal against the judgment expired in September 2018.  The applicant was late for almost 2 years.  

3.  As the Applicant did not apply for leave to appeal to the CFA within time, good and sufficient ground must be shown by the Applicant before the court will exercise its discretion to grant an extension of time for him to do so, see: section 24(5) of the Ordinance.  See also: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another (unreported) CACV 191/2013, 29 January 2015.

4.  The delay of the Applicant is very serious and he did not provide any explanation for the same. He had notice of the judgment of 26 July 2018 as he filed a Notice of Intended Application for leave to appeal on 17 August 2018.  However, he did not take the application further until he filed the Notice of Motion on 18 August 2020.

5.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

6.  In his Notice of Motion, the Applicant stated that he strongly believed there is a direct threat to himself if he were to return to Pakistan, and that all the information provided on his case was not looked into properly or considered properly.

7.  Notwithstanding the acknowledgment by the Applicant on 18 August 2020 of the requirement under Practice Direction 2.1 and the direction of the Registrar of Civil Appeals of 19 August 2020, the Applicant has not lodged any written submissions in support of this application.

8.  We are of the view that the Applicant has not raised any reasonably arguable ground of appeal on the merit of his claim, or any discernible or arguable ground for disturbing our judgment.

9.  Though it has recently been held by the CFA in H v Director of Immigration[2020] HKCFA 22 that an applicant did not need Section 14AA[1] leave to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it cannot assist the Applicant in this instance because:

(a)  The present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose for an appeal to the CFA regarding such refusal of leave.  The reversal of our decision on Section 14AA leave would not automatically lead to success in his appeal against the Judge’s decision of 16 March 2018.  To achieve that he needs to bring an appeal to this Court;

(b)  Due to lapse of time, the Applicant needs an extension of time to bring an appeal to this Court and if he made such application, the Court will have regard to the merits of his intended appeal in deciding if extension should be granted;

(c)  Having regard to our views on the lack of merit in his intended appeal as set out at [16] to [27] of our judgment of 26 July 2018, the Court will not grant extension of time for a futile appeal to be brought.

10.  In the circumstances, we do not consider that there is any question of great general or public importance or otherwise which ought to be submitted to the CFA for determination. 

11.  For these reasons, we refuse to grant extension of time to the Applicant to seek leave to appeal to the CFA.  We dismiss the Applicant’s Notice of Motion accordingly.

CACV 79/2018

[2018] HKCA 439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 79OF 2018

(ON APPEAL FROM HCAL 706/2017)

___________________

___________________

___________________

JUDGMENT

___________________

Hon Lam VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 16 March 2018 refusing leave to apply for judicial review.

2.  The applicant is a Pakistani national.  He left Pakistan for Mainland China (via Bangkok) on 2 July 2013 and entered Hong Kong illegally on 13 July 2013. He was arrested by the police on 19 July 2013.  His non-refoulement claim was lodged on 23 July 2013.  His claim was based on the fear that, if he returned to Pakistan, he would be harmed or killed by two men, named Faisal and Yasir, and their associates, who were supporters of the Pakistan Muslim League (N). It was said that Faisal and Yasir attacked the applicant because the applicant was a supporter of their political rival the Pakistan People’s Party.  

3.  By a notice of decision dated 24 August 2015, the Director of Immigration rejected the applicant’s claim.  The director considered that the applicant had only encountered Faisal and Yasir twice and was injured only on one occasion. The injury sustained by the applicant was not severe.  The Director took the view that the absence or low intensity and frequency of ill-treatment from Faisal and Yasir in the past was indicative of a small future risk of harm upon the applicant’s return to Pakistan.  Furthermore, the Director did not accept the contention that the father of Faisal and Yasir was a senior police officer and had influence on the Pakistani police force.  Nor did the Director find that Faisal and Yasir were government officials or acting in any official capacity.  The availability of state protection and the viability of internal relocation would lower the risk of harm.  The decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]. 

4.  By a notice of further decision dated 26 October 2016, the Director also assessed the applicant’s BOR 2 risk[4] and determined against him.

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 22 December 2016, the Board dismissed the appeal on 13 February 2017.  The Board found that the applicant’s alleged story was too vague and unreliable to carry any evidential weight.  The Board also found that the applicant was dishonest and unreliable and that he was not a genuine claimant.  The Board agreed with the Director that there was no involvement of the state in the incidents and the injury suffered by the applicant did not attain a minimum level of severity.  The Board also shared the Director’s view that, based on the country of origin information, internal relocation was a viable option for the applicant.  The Board’s decision covered all grounds applicable in the applicant’s claim.

6.  The intended application for judicial review was in respect of the decisions of the Director and the Board.  The form 86 filed on 3 October 2017 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant advanced the following grounds for the intended application for judicial review:

(a)   The lack of legal representation;

(b)   The lack of language assistance;

(c)   The absence of reason for rejecting the BOR 2 claim;

(d)   The lack of fair hearing.

7.  Upon the request of the applicant, an oral hearing was held on 1 March 2018.  The deputy judge noted that the application for leave to apply for judicial review was not made within the statutory time limit.  After considering the explanation given by the applicant during the hearing and the relevant legal principles, the deputy judge refused to extend time to the applicant to apply for judicial review. The deputy judge’s reasons to do so were set out in paragraphs 8 to 13 of the CALL-1 form:

“8. The delay is not insignificant, there is no proper explanation for the delay and there is no good reason for extending time. This is because the merits of the substantive application, after perusal of the papers and hearing the applicant, are weak. Moreover, the application does not raise any questions of general public importance. The extension of time sought is an abuse of process and ought to be refused. Delay alone is enough to dispose of this application. However, if I am wrong, I proceed to consider the merits.

9. In his affirmation, the applicant relies on four grounds, in the first ground, he complains of a lack of legal representation provided to him throughout his appeal process. In ground 2, he then complains of a lack of interpretation service provided to him throughout the claim process, it seems at his beck and call. The third ground is a submission that the Director’s Notice of Further Decision failed to give a reason for rejecting his BOR 2 claim which has no merit; the Director gives reasons and refers to his previous decision. In any event, there is no room for a judicial review of this Director’s decision. The applicant has already utilised the channel of appealing this decision to the TCAB. I will consider the grounds of this application against the decision of the TCAB only.

10. The fourth ground is a complaint that no one interviewed him before the Director made the decision he had no BOR 2 risk. I find no merit in this ground and my reasons from the preceding paragraph apply. He also complains that no Immigration officer attended the appeal hearing but I see no procedural issue with this; the Director submitted written submissions and attendance was excused.

11. There is no merit in the first ground; no authority from the higher courts have prescribed that an asylum seeker must have an absolute right to free legal representation at all stages of the proceedings. The applicant already had the benefit of legal representation in presenting his case to the Director including the presence of a lawyer at the interviews by an Immigration officer. Thereafter, the Duty Lawyer Scheme will continue to represent an applicant during his appeal if they are of the view that his appeal has merits.

12. As for ground 2, interpretation service has been provided to the applicant during interviews and at hearings. It could not be the intention of any authority laying down the principle of a high standard of fairness that it would include such a service at any time an applicant desired. There are no particulars to this ground and there is no merit in it.

13. None of the grounds put forward by the applicant showed any error of law by the adjudicator.  There was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable.  Even if I was wrong to find that delay in his application was enough to dispose of it, none of the grounds were reasonably arguable and there is no realistic prospect of success.  I refuse leave for judicial review.”

8.  In the notice of appeal filed on 28 March 2018, the applicant advanced the following grounds of appeal:

(a)   The applicant admitted that he had moved, changed address and did not inform the board, but he did not know the Board would send him the decision by post;

(b)   The deputy judge erred in ruling that there was no room for judicial review of the Director’s decision; and

(c)   It was procedurally unfair that the Duty Lawyer Scheme had not provided legal representation to him for his BOR 2 claim.

9.  By a letter dated 3 April 2018, the applicant agreed that this appeal be heard by a two-judge court.

10.  Following directions given by the Registrar of Civil Appeals, the applicant lodged his skeleton argument on 26 June 2018.  The applicant reiterated that:

(a)   The deputy judge erred in saying that there was no room to judicially review the decisions of the Director as the applicant had utilized the channel of appealing to the Board (para 5);

(b)   While he would not argue that he should have absolute right to free legal representation at all stages of the process, it was unfair for the Board to determine his BOR 2 claim in absence of legal representation (para 6);

(c)   It was unfair for the failure of the Duty Lawyer Scheme to provide legal assistance to him (para 7);

(d)   While he admitted that he had moved and changed his address and did not inform the Board of the change, he did not know that the Board would send its decision by post (para 8).

11.  We heard the appeal on 24 July 2018.

12.  In the recent decision of this Court in MI v Secretary for Security[2018] HKCA 419, it was held that in judicial review cases brought outside the three-month time limit where the judge refused to extend time, an applicant should obtain leave under Section 14AA of the High Court Ordinance before an appeal can be brought.

13.  As there was no good explanation for the delay and, as explained below, the appeal has no merit, we refuse to grant leave under Section 14AA.

14.  We do not find anything amiss in the deputy judge’s refusal to accept the applicant’s explanation for delay.  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 same applies to the address given by an applicant to the Board. As far as the Board was concerned, that address was the applicant’s designated means of contact.  As a matter of common sense, there would be no point for an applicant to give a correspondence address if he had no duty to up-date the same when he moved pending the result of the Board. 

15.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant, see: Islam Raja Rais v. Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board[2018] HKCA 82; and Re Saqlain Muhammad[2018] HKCA 346.  This proposition is equally apposite to a non-refoulement claimant where he fails to provide an updated address to the Immigration Department or the Board.

16.  On the merit of the intended application for judicial review, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah[2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17; and Re Lopchan Subash[2018] HKCA 37.

17.  As regards legal representation for his claim in respect of the BOR 2 risk, there is no evidence before us that the Duty Lawyer Scheme refused to render assistance to the applicant when he approached them. 

18.  When the Director invited the applicant to submit additional information in support of his BOR 2 claim, he did not provide any.  Nowhere in the proceedings (including the applicant’s appeal to the Board, his application for leave to apply for judicial review, and this appeal) did the applicant indicate that he intended to provide additional information in support of his BOR 2 claim.  In such circumstances, the Director was entitled to proceed with the assessment of the applicant’s BOR 2 risk on the basis of the primary materials relating to the other grounds, bearing in mind that such primary materials were prepared by the applicant’s legal representative.

19.  We do not see any reasonably arguable basis to suggest that the lack of legal representation for the applicant’s BOR 2 claim has rendered the process unfair.

20.  On the facts of this case, we cannot see any additional basis for advancing a case on the BOR 2 risk independent of the BOR 3 risk, the persecution risk, and the torture risk.

21.  Nor is there any merit in respect of the challenge based on the lack of language assistance.  As the deputy judge rightly observed, the applicant did not provide any particulars about any mis-translation of his material.  We also endorse the deputy judge’s comment that the high standard of fairness required by law would not entail an interpretation service to be available at any time as the applicant desired. It is further noted that all court documents were written in English, indicating either that the applicant is familiar with the English language or that he had the means and access to such language assistance as he needed. 

22.  As regards the challenge based on the absence of reason for the Director’s rejection of his BOR 2 claim, the high standards of fairness as laid down by the Court of Final Appeal do not require the reasons to be elaborate, although the reasons must be sufficient to enable the potential deportee to consider the possibility of administrative review and judicial review: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, paragraph 51. 

23.  The Director’s further decision on the BOR 2 risk should not be considered in isolation.  It should be read together with his earlier decision involving the same primary material even though on different risks.  When that is done, the reasons for the director’s rejection of the BOR 2 claim are clear.  There is no reasonably arguable basis to challenge the Director’s further decision based on the absence of adequate reason therein. 

24.  The complaint about the Board excusing the director from attending the oral hearing is not a valid ground for judicial review.  As we have said before, the conduct of the proceedings before the Board is a matter of case management by the Board.  It was perfectly open to the Board to decide, after reading the written materials, to excuse the Director from attending: see: Sheetal Neupane v Director of Immigration CAMP 30/2017, 9 November 2017. 

25.  In the present proceedings, the applicant had not indicated how the absence of the Director had occasioned unfairness to him.  Nor is there any indication that the applicant would like to elicit any information from the Director during the oral hearing before the Board.  There is no reasonably arguable basis to challenge the fairness of the process based on this ground.

26.  In those circumstances, there is no reason for us to say that the high standards of fairness have not been met in this case.

27.  Having considered the applicant’s skeleton argument as well as the material before us, we agree with the deputy judge’s decision.  We cannot see any errors of law or procedure in the proceedings before the director and the board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of the non-refoulement claim is a matter for the director and the board, not the court.  We agree with the deputy judge that leave to apply for judicial review should be refused.

28.  For these reasons, we do not see any scope for granting leave under Section 14AA for an appeal against the refusal of extension of time to be brought. Accordingly, the appeal has to be struck out and dismissed.