RE RASHID

CAMP 10/2020

[2020] HKCA 612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 10 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 140/2018)

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________________________

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J U D G M E N T

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

1.  On 24 June 2020, the Applicant filed his Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Lam VP, Barma JA) judgment of 17 June 2020.

2.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal (“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.

3.  The Applicant has set out the following matters in his Notice of Motion for leave to appeal to the CFA:

“ The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decisions of the director of whereby the director and the adjudicator was required to give reasons justifying the decision.

The learned Judges were wrong as a matter of law for not having applied the principle of irrationality in considering the decision made by the director of Immigration.

I will face hardship if I return to my country.

The Judge did not apply the law properly.” [sic]

4.  The Applicant’s written submissions of 7 July 2020 in support of this application are identical to his written submissions of 16 March 2020 that were placed before us on appeal and are also identical to his submissions of 21 October 2019 that were placed before the Judge below.  The only discernible complaint in those submissions is that the Board acted in a procedurally unfair manner by failing to properly assess the Applicant’s credibility.

5.  We are of the view that the Applicant has not raised any reasonably arguable ground of appeal on the merit of his claim.  The Applicant’s written submissions merely repeated his earlier submissions which were duly rejected by us and the Judge below.  He did not raise any discernible or arguable ground for disturbing our judgment.

6.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration[2020] HKCFA 22 that an applicant did not need Section 14AA 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 Court of Final Appeal 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 October 2019.  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 [19] to [24] of our judgment of 17 June 2020, the Court will not grant extension of time for a futile appeal to be brought.  

7.  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.

8.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the Applicant’s Notice of Motion.

Applicant acting in person

CAMP 10/2020

[2020] HKCA 483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 10 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 140/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  On 16 October 2019, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant an extension of time to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 23 June 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 27 May 2016 and 13 March 2017 rejecting the applicant’s non-refoulement claim.

2.  On 6 January 2020, the Judge refused to grant leave for the applicant to bring an appeal against the decision of 16 October 2019.

3.  By a summons dated 10 January 2020, the applicant sought leave from this Court to appeal out of time against the Judge’s decision of 16 October 2019.

Background

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 8 January 2016 and was arrested by the police the same day.  He raised a non-refoulement claim on 11 January 2016. 

5.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by his uncle and his uncle’s sons because they had used violence and threats to endeavor to coerce him into surrendering his farmland in Pakistan to them.  He believed that his uncle was politically influential due to his ties with the Pakistan Muslim League (Nawaz).  The factual background was succinctly summarized by the Judge in [1] – [9] of the Form CALL-1 ([2019] HKCFI 1047).

6.  By two notices of decision dated 27 May 2016 and 13 March 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3], and the latter the BOR 2 risk[4].

7.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 21 March 2017, during which the applicant gave evidence before the Board.  After hearing the applicant, the Board found that the applicant was not a credible witness as there were numerous inconsistencies between the applicant’s testimony at the hearing and what he previously stated in his Non-refoulement Claim Form dated 14 March 2016.  The Board also considered that there was sufficient state protection and that internal relocation was viable.  The Board dismissed the applicant’s appeal/petition on 23 June 2017.

The Judge’s decisions in the court below

8.  On 30 January 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The Form 86 did not contain any ground for seeking relief.  In the affirmation in support dated 12 January 2018, the applicant advanced only one ground for judicial review, namely that the Board’s decision is unfair and unreasonable. However, the applicant did not provide any particulars as to why that decision was unfair or unreasonable.

9.  As the applicant did not request for any oral hearing, the Judge processed the application on the papers.  After summarizing the background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to grant extension of time to the applicant to apply for judicial review.  The reasons in refusing leave were set out in [14] – [19] of the Form CALL-1 ([2019] HKCFI 1047) as follows:

“ 14. In its decision the Board found numerous inconsistencies and contradictions between what was stated in his NCF and his testimony given in his oral hearing that the applicant failed to prove his account of the past and existing facts to support his claim under any of the applicable grounds, and that in any event COI materials show that both state protection and internal relocation are viable to the applicant as his problem with his uncle is a private land dispute and the alleged risk a localized one that it would not be unduly harsh or unsafe for the applicant as a young man with work experience to safely relocate to other cities in Pakistan.

15. On 30 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward only one ground: that the Board’s decision is unfair and unreasonable but without providing any particulars or specifics or elaborations as to why it was so.

16. However, by then the applicant was also way out of time with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

17. In the applicant’s case, the three-month period within which he was to file his Form 86 expired on 23 September 2017, and hence he was more than four months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

18. A delay of more than four months must be regarded as substantial or excessive, for which the applicant did not provide any explanation either in his affirmation or in any of his subsequent letters sent to Court, whilst as noted above his sole vague and unelaborated complaint against the Board’s decision reveals no arguable basis for his intended challenge. As such and in the absence of any legal error or procedural unfairness in the decision being clearly and properly identified by the applicant, I do not see any basis or merits in his intended application.

19. In the premises and for these reasons, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason for his substantial delay, I refuse to extend time and accordingly dismiss his leave application.”

10.  On 21 October 2019, the applicant took out a summons to seek leave to appeal against the said decision of the Judge.  In the supporting written submissions of the same date, the applicant submitted that the Board acted in a procedurally unfair manner in dealing with the claim without properly assessing the applicant’s credibility.  However, the applicant did not specify how the Board’s assessment of credibility was not proper. 

11.  The Judge heard the summons on 3 December 2019. In his decision dated 6 January 2020 ([2020] HKCFI 53) at [5], the Judge noted that the applicant did not provide any draft or proposed ground of appeal.  In the absence of any error of law or any failure to take into account relevant matters in the decision being clearly and properly identified by the applicant, the Judge did not see any reasonable prospect of success in the intended appeal, and dismissed the summons accordingly.

The renewed application before this Court

12.  On 10 January 2020, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 16 October 2019 refusing leave to apply for judicial review.

13.  In his supporting affirmation of 10 January 2020, the applicant did not raise any proposed substantive grounds of appeal.

14.  On 16 March 2020, the applicant lodged written submissions that were identical to his submissions of 21 October 2019 before the Judge below.

15.  The reason for the need to have leave before an appeal can be brought in this instance should be clearly identified.  As explained by the Judge at [16] and [17] of the Form CALL-1 ([2019] HKCFI 1047), the applicant had applied for judicial review outside the time limit prescribed by Order 53 Rule 4(1) and must first seek an extension of time to do so.  The Judge refused to grant such extension of time.  As held by this Court in Kwok Cheuk Kin v Leung Chun Ying[2018] HKCA 419, the applicant needs to obtain leave under Section 14AA of the High Court Ordinance before he can appeal against such refusal of extension of time.

16.  The applicant applied for leave to appeal by summons on 21 October 2019 (which was made within the 14-day time limit under Order 59 Rule 2B(1).  After refusal of leave by the Judge, he applied to this Court by a summons of 10 January 2020 (also within the 14-day time limit under Order 59 Rule 2B(3). 

17.  Thus, the leave application is to be assessed by reference to the criteria for granting leave under the rubrics of Section 14AA.  In this connection, the Judge correctly identified the same at [3] and [4] of the Decision of 6 January 2020. 

Legal principles

18.  As noted by the Judge at [17] of the Form CALL-1 ([2019] HKCFI 1047), the relevant criteria for considering an application for extension of time to bring a judicial review were discussed in Re Thomas Lai [2014] 6 HKC 1 and AW v Director of Immigration [2016] 2 HKC 393.  The court will have regard to: (1) the length of delay; (2) the reason for the delay; (3) the merit of the intended judicial review; and (4) any prejudice to the putative respondent and to public administration.

Discussion

19.  In the present case, the Judge regarded the delay between the Board’s decision and his Form 86 as substantial and there was no explanation offered by the applicant.  We see no ground for disturbing those findings.  His affirmation of 10 January 2020 only alluded to his detention to account for his lack of notice of the decision of 16 October 2019.  But as mentioned above, he actually applied for leave to appeal against the decision of 16 October 2019 within time. 

20.  Further, the Judge found that there was no merit in the intended judicial review.  Again, the applicant has not advanced any effective ground to challenge such assessment.

21.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its adverse finding on the applicant’s credibility.  Such a finding is within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

22.  The applicant has not put forward any ground that warrants the court’s interference with the decision.  As observed by the Judge at [15] of the Form CALL-1 ([2019] HKCFI 1047), the ground stated by the applicant in the Form 86 is a bare general assertion.  In the summons of 10 January 2020, he did not set out any substantive ground for challenging the judge’s conclusion.  His written submissions only referred to some general propositions of law.  As this Court has held repeatedly, general assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder[2019] HKCA 20; Re Aziz Nasir[2019] HKCA 578; Re Kharsu Numan[2019] HKCA 626; Re Salim Ahmed[2020] HKCA 244. 

23.  Having considered the materials before us, we are of the view that the Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  There is no reasonably arguable ground to challenge the decision of the Judge.

24.  For these reasons, there is no prospect of success in the intended appeal.  The summons dated 10 January 2020 is dismissed accordingly.

25.  We also order that, pursuant to Order 59, rule 2A(8), no party may request this determination be reconsidered at an oral hearing inter partes.

Applicant acting in person