RE FAHIM FIZA AND OTHERS

CAMP 203/2019

[2021] HKCA 662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 203 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1040 OF 2017)

________________________________

_______________________________

___________________

J U D G M E N T

___________________

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

1.  By a judgment dated 21 May 2020 ([2020] HKCA 329) (“the Judgment”), this Court (Yeung VP and Pang JA) refused to grant an extension of time to the 1^st, 2^nd and 3^rd applicants to apply for leave to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 31 August 2018 in HCAL 1040/2017 refusing to grant the 1^st, 2^nd and 3^rd applicants leave to apply for judicial review. The applicants sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 20 October 2017 dismissing their petition/appeal against the decision of the Director of Immigration (“Director”) given on 9 February 2017 rejecting their non-refoulement claims.

2.  On 5 November 2020, the applicants filed a Notice of Motion for leave to appeal the Judgment to the Court of Final Appeal. However, it was out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (“the Ordinance”) stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from and the deadline for filing the Notice of Motion expired on 19 June 2020.

3.  Under section 24(6) of the Ordinance, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party: Begum Jahanara v Ian Candy, Esq[2021] HKCA 83, per Lam VP at [4] and the authorities cited therein.

4.  In the present case, the applicants delayed for almost 5 months and the delay is substantial.  The 1^st applicant explained in the notice of motion and her supporting affirmation that she was not aware of the Judgement until she reported to the Immigration Department. She claimed that she did not know the 28-day time limit in filing the appeal as it was not mentioned in the Judgment and English is not her first language. She also needs to look after her children and therefore she did not closely follow up the appeal matter. 

5.  In our judgment, the 1^st applicant failed to provide any good reason for her substantial delay.

6.  In any event, the applicants have not shown any merits in their intended application for leave to appeal to the Court of Final Appeal. 

7.  In the Notice of Motion and supporting affirmation, the 1^st applicant advanced the following grounds on the merit of the intended appeal:

(1)  Despite her language incapability, there was no reasonable arrangement to enable her to understand the content of the judgments and thereby deprived her of the right to seek further avenues of appeal.  It was a wrongful exercise of case management power and that careful consideration should be given to extending case management power to how a judgment is delivered.

(2)  She could not understand the judgment completely as she was not given a translation.  She requested that the judgment be read or translated to her and to give her reasonable time to respond.

(3)  She urged the court to reconsider her case.

8.  The applicants have failed to lodge their written submissions as per the directions made by the Registrar of Civil Appeals on 9 November 2020.

9.  We do not see any merits in the applicants’ grounds of appeal.  The only complaints made by the 1^st applicant were that the lack of language and legal assistance had hindered her proceeding with her appeal.  However, they are not viable grounds of appeal against the Judgment:

(a)    Insofar as the lack of language assistance is concerned, in the present case, all the court documents filed were in English.  It is clear that either the 1^st applicant is herself conversant with the English language or she has access to language assistance of her own if she finds it necessary.  Further, the applicants were assisted by an interpreter before the Deputy Judge.  In any event, it is trite law that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as she desires: see [20] of Cucun Fatimah v Torture Claims Appeal Board[2019] HKCA 1264; also [12] of Re Gurung Sagar[2019] HKCA 658.  There is no merit in this complaint.

(b)  As for the lack of legal assistance, this court has emphasised repeatedly that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the process: [18] of Re Zunariyah[2018] HKCA 14; [11] of Re Zahid Abbas[2018] HKCA 15; [11] of Re Tariq Farhan[2018] HKCA 17; and [13] of Re Lopchan Subash[2018] HKCA 37.  In this respect, the applicants were provided with legal representation under the Duty Lawyer Scheme in relation to their claims before the Director.  There is also no merit in this ground.

10.  We further take note that the 2^nd and 3^rd applicants in the present case are minors.  The proper approach to children’s non-refoulement claims has recently been considered and explained by this Court in Fabio Arlyn Timogan v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board, [2020] HKCA 971 (Lam VP, Barma and Au JJA) and in Re Jasvir Singh & others[2021] HKCA 53 (Lam VP and Au JA).

11.  We shall not repeat everything that has been said in those cases.  Suffice for the present purpose to note that, non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.  It is therefore pertinent for the court to examine, in the context of the requisite high standard of fairness, whether the minors’ non‑refoulement claim have been properly considered by the Board as separate claims having regard to their own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for non-refoulement claim which had not been advanced or properly advanced before the Board because of the absence of the legal representation.

12.  In our judgment, the latest authorities cannot avail the 2^nd and 3^rd applicants in the present case.  The 2^nd and 3^rd applicants’ non-refoulement claims framed before the Board was that they would be put at risk by returning to Pakistan as the creditors are still looking for their father for the personal loan.[1]

13.  According to the 1^st applicant, they had encountered 3 incidents in Pakistan.  The first one happened in May 2015 when there were some 4 to 5 men who went to the applicants’ house knocking on their door and then went to the neighbor to ask for the whereabouts of the 2^nd applicant and they left thereafter.  The 1^st applicant suspected that they might want to kidnap the 2^nd applicant. The second incident happened in July 2015 when the same gang went knocking on the applicants’ door, as the 1^st applicant did not answer the door, the gang waited and left after about an hour.  The third incident happened on the next day when the 1^st applicant went out to collect visa documents with her husband, they were robbed by some robbers. 

14.  Based on the facts given by the 1^st applicant, the Board found that the 2^nd and 3^rd applicants stayed safe in their house in the first and second incidents and they were not present at the third incident.  Thus, on the evidence, the acts and conduct had not attained the degree of severity in pain or suffering for them be regarded as torture[2] and in any event, as the state has no adverse interest in the applicants and the creditors were not so powerful and influential to trace down and control the movement of the applicants, internal relocation would be a reasonable and viable options for all the applicants to avoid the creditors.  The Board, in reaching the said conclusion, had paid regard to the 2^nd and 3^rd applicants’ personal situation, and that they speak Urdu and English and are Moslems, like the 95% of the Pakistani population, they would not encounter any particular problem for internal relocation.[3]   

15.  There is no evidence suggesting that the 2^nd and 3^rd applicants would face any risk of harm other than those already rejected by the Board upon refoulement.  Thus, in our view, the Board had properly assessed the 2^nd and 3^rd applicants’ claims independently and separately and had duly given reasons for rejecting their claims.  There is nothing to indicate that the merits of the 2^nd and 3^rd applicants’ claims were not fully or adequately explored before the Board due to lack of legal representation such that the high standards of fairness were not met.

16.  Further, we have looked at the evidence filed in this application and do not see any material that may give rise to a concern that there may be non‑refoulement grounds that relate specifically only to the children but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.

17.  In the premises, the 1^st, 2^nd and 3^rd applicants have not raised any reasonably arguable ground of appeal on the merit of their claims, or any discernible or arguable ground for disturbing the Judgment.

18.  We do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the Court of Final Appeal for determination pursuant to section 22(1)(b) of the Ordinance.

19.  For these reasons, it will be futile to extend time.  We therefore refuse to grant leave to appeal to the Court of Final Appeal out of time, and dismiss the application.

[1] [10] of the Board’s decision.

[2] [66] – [69] of the Board’s decision.

[3] [113] & [114] of the Board’s decision.

CAMP 203/2019

[2020] HKCA 329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 203 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1040 OF 2017)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  By a summons filed on 23 August 2019, the 1^st, 2^nd and 3^rd applicants renewed their applications for an extension of time to appeal against the decision given by Deputy High Court Judge Bruno Chan (“the Judge”) on 31 August 2018 (“the Decision”) refusing to grant leave to the applicants to apply for judicial review.  The intended judicial review was against the decision of Torture Claims Appeal Board (“the Board”) dated 20 October 2017, in which the Board confirmed the decision made by the Director of Immigration (“the Director”) dated 9 February 2017.

2.  The applicants’ application for an extension of time to appeal was refused by the Judge on 5 June 2019.

3.  The applicants now renew their applications for leave to appeal out of time before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 28 August 2019, the applicants lodged their written submissions on 13 September 2019. 

4.  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 summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The 1st applicant is the mother of 2^nd and 3^rd applicants who are both minors and all are nationals of Pakistan.  They came to Hong Kong illegally on 17 August 2015 and surrendered to the Immigration Department on 20 August 2015.  On 20 March 2016, they lodged their non - refoulement claims by way of written representation.  Their claims were made on the basis they would be harmed or even killed by the creditors of the 1^st applicant’s husband for his failure to repay his loan.  The 2^nd and 3^rd applicants relied on the 1^st applicant’s claim and the Director took joint considerations and assessment of the three applicants.

6.  By a Notice of Decision dated 9 February 2017, the Director decided against the applicants’ claim on BOR 2 risk, BOR 3 risk, the persecution risk, and the torture risk. 

7.  The applicants appealed to the Board.  After the hearing on 15 September 2017, the Board dismissed the applicants’ case on 20 October 2017.  For the reasons stated in [64] to [128] of the Board’s decision, it found that the applicants’ case was premised on a private and personal monetary dispute between the 1^st applicant’s husband and his creditors and that the applicants did not suffer any form of physical injuries.  The objective Country of Origin Information (“COI”) showed that reasonable internal relocation alternatives was available in Pakistan and it would not be unduly harsh for the applicants to move safely to other places where it would be unlikely for the creditors to waste their resources to locate them.   The Board found that the applicants failed to establish their claims on all applicable grounds.

The Judge’sDecision

8.  On 8 December 2017, the 1^st applicant filed her Form 86 together with her supporting affirmation for leave to apply for judicial review of the Board’s decision.   In her supporting affirmation, she set out the grounds for her intended challenge as follows:

(1) There was a lack of legal representation in her appeal before the Board.

(2) There was a lack of legal assistance for not providing her with any translation of her NCF to enable her to find out if the interpreter had translated the basis of her claim properly.   

9.  The Judge heard the leave application on 21 June 2018 and by the Decision of 31 August 2018, he considered the intended judicial review not reasonably arguable and has no realistic prospect of success, and refused to give leave to the applicants to apply for judicial review.  He gave his reasons at [11] – [16] of the CALL-1 Form:

“11. At the oral hearing of her leave application before me A1 brought along A2 and A3 and confirmed that her application was in fact also made on their behalves and that they should be added to her Form 86, that they be allowed to attend the hearing as her joint applicants, and that she be allowed to make submissions on their behalves, to which I granted leave to her request including the amendment of her Form 86 to include A2 and A3 accordingly. I shall next proceed to consider their grounds for their intended challenge.

12. For their complaint in ground (1) of not being provided legal representation in their appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: 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 Zafar Muazam[2018] HKCA 176.

13. The applicants already had the benefit of legal representation in presenting their case to the Director, and A1 was able to testify and make representation in their appeal hearing before the Board and to answer questions from the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in their appeal process, and I do not think this ground is reasonably arguable.

14. As for their complaint under ground (2) of not being provided with a translation of the NCF, it is clear that their NCF was completed on their instructions to their legal representation from DLS, and that they were assisted by an interpreter at their appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of their claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicants simply speculative and without merit.

15. The fact is that once it has been established by both the Director and the Board in their decisions with reliable and objective COI that it is not unreasonable or unsafe for the applicants to relocate to another part of Pakistan, I am unable to find any justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicants’ claim.”

10.  By a summon filed 8 March 2019, the applicants sought leave to appeal against the Decision out of time, as the 14-day period for them to lodge their appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A expired on 14 September 2018.  In the 1^st applicant’s supporting affirmation, she explained that she was applying for legal aid at the material time which caused the delay in taking out the summons.  She urged the court to consider her language barrier and her genuine effort in pursuing the intended appeal.

11.  By the decision dated 5 June 2019, the applicants’ summons was dismissed.  On the issue of delay, the Judge noted from the court record that the applicants applied for legal aid on 18 September 2018 which was already outside the 14-day period for taking out the summons for appeal.  Further, their legal aid applications were refused on 23 October 2018 and the applicants failed to explain why it had taken them a further four months until 8 March 2019 to issue their summons.  In the circumstances, the Judge did not accept that the applicants had provided any good reason for their substantial delay.

12.  Turning to the issue of merit, the applicants did not provide any proposed ground for their appeal, or any particulars or elaboration as to any error in the Decision or why it was unreasonable or unfair.  The Judge did not find any reasonably arguable basis to challenge the Decision or any prospect of success in their intended appeal, thus, the Judge dismissed the summons accordingly.

The Renew Application

13.  By the summons dated 23 August 2019, the applicants renewed the matter before us.  In the supporting affirmation and written submissions of the 1^st applicant, she advanced the following grounds of appeal:

(1) The Judge erred in his judgment by not taking all relevant circumstances into account, not making sufficient enquiries as to the reason for the delay and should give the applicants the benefit of doubt to the minimum level as to her reasons of delay.

(2) The applicants did not know that they were obliged to provide proposed ground of appeal for their applications for an extension of time to appeal against the Decision. 

(3) There was a lack of language assistance and the Decision was not read to the applicants.  They requested that the Decision to be translated to them and they should then be given reasonable time to respond.

Legal Principles

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

15.  Even if the court does not accept that an applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346. 

16.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1) 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 scrutinizing 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.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) 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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

17.  In the present application, the 1^st applicant repeated the grounds of appeal as advanced before the Judge.  In her written submissions, she quoted her previous affirmation that “upon receiving the judgment dated 31 August 2018, I was uncertain as to what to do and so I approached the Legal Aid…”  According to the court file, the applicants made their legal aid applications on 18 September 2018 and the same were refused on 23 October 2018.  The 1^st applicant mentioned that at that time, she was told that the 14-day time limit in taking out the appeal had expired.  Despite the aforesaid, the 1^st applicant went on to say that she was only aware of the Decision until February 2019.  It was a clear contradiction.  As such, we did not accept that the 1^st applicant was only aware of the Decision in February 2019.  Even she did, she gave no reason why she failed to receive the Decision.  

18.  We take the view that the 1^st applicant should have at least been aware of the Decision at the time when she applied for legal aid and we failed to see any reason for the further substantial delay.  We are not satisfied that the 1^st applicant had provided good reason for the delay and it was inexcusable. 

19.  Turning to the issue of merit, the applicants must satisfy this Court that their intended appeal have real prospect of success.  The applicants failed to provide any valid ground of appeal pinpointing the error of law or procedural impropriety or irrationality of the Decision and therefore, the intended appeal is bound to fail.  

20.  The 1^st applicant said that she did not understand the Decision owing to her language barrier and she did not know that she was required to provide proposed grounds of her intended appeal.  Firstly, we noted that the summons, supporting affirmation and written submissions were all prepared in English, it suggested that the 1^st applicant was either familiar with English language or she had the necessary resources or assistance for her alleged language difficulties.  Secondly, the Judge had clearly pointed out in the decision dated 5 June 2019 that the applicants should provide proposed ground of appeal for their intended appeal.  However, she still failed to do the same in the present application and there was no excuse for her repeated failure.  Lastly, the applicants’ claims were rejected by the Board on the basis that the alleged money dispute was private in nature with no state involvement; that the applicants had suffered no actual physical harm in their home country; that there was no evidence suggesting any risk of harm upon their return and in any event; and that internal relocation was viable.  We agree with the Judge’s conclusion that the Board’s decision was justifiable and flawless.

21.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 23 August 2019 is dismissed accordingly.

22.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant, unrepresented, acted in person.