RE MUGHAL ZIA UR REHMAN

HCAL 781/ 2018

[2021] HKCFI 907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 781 of 2018

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DECISION

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Background

1.  On 4 November 2020, I refused to grant extension of time and refused to give leave to the applicant to apply for judicial review (“the Court’s order”) against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 4 August 2017.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 5 December 2016 refusing to re-open the applicant’s non-refoulement claim.

2.  The Court refused the applicant’s application for reasons stated in [7-28] of its decision (Form CALL-1).  Significantly the Court found that there is no merit in the applicant’s intended application for judicial review, which was made out of time without valid reason for the delay. In the absence of good reason for extending the time to make his application and merit in the intended judicial review, the Court refused the application for leave for judicial review.

3.  By a summons filed on 2 March 2021, the applicant applied for extension of time to appeal against the Court’s order.  The applicant had 14 days from that order to apply to appeal to the Court of Appeal.  He did not do so.  He now requires leave to extend time to appeal against that order out of time.  The 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court ended on 18 November 2020.  He was therefore late by more than 3 months with his intended appeal.

4.  In his supporting affirmation, the applicant deposed that “…the decision made by the High Court…has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, I did not receive any correspondence from the High Court regarding the Judicial Review… as I was in custody of Correctional Services Department.  I humbly request the Court to …give a chance to explain.”

5.  At the hearing on 26 March 2021, he further explained he first came to know about the Court’s order after he was transferred from prison (having served a term of 4 months’ imprisonment) to the Castle Peak Bay Immigration Centre on 26 December 2020. He made his application to appeal as soon as he was aware of the Court’s order. As regards the grounds and reasons for his intended appeal, he said he wanted to have some more time and he could not contact anyone in his family.

Discussion

6.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

7.  In the present case, the applicant was late by more than 3 months.  I will give him the benefit of doubt and accept that he made his application promptly after he learned about the Court’s order.

8.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  Assessment of evidence and evaluation of risk 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.  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’s decision, the appeal should be dismissed.

9.  In the present case, the applicant previously lodged a torture claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment which was rejected by the Director on 30 August 2012. He subsequently applied for non-refoulement protection under the Unified Screening Mechanism which commenced operation on 3 March 2014. He was informed that if he had any special needs relating to the completion of the Supplementary Claim Form (“SCF”), he could seek legal advice and help from the Duty Lawyer Service. Having been repeatedly reminded of his duty to return the SCF, he failed to return the requisite form within the extended time limit and his application was therefore treated as withdrawn by the Director after the expiry of the deadline. The Director was proper to do so under s 37ZG (1) of the Immigration Ordinance. The Director further refused to re-open his claim when the applicant, claiming that he was “not mentally properly ready to answer and complete (the) SCF”, did not provide any medical evidence about his alleged physical or mental condition in support of his claim. The decision was again made pursuant to s 37ZG (3). It was a reasonable decision of the Director.

10.  The Court did not agree that his claim was dismissed and disposed of without proper screening by the Board. The Board duly considered the issue and gave sufficient reasons for its decision [26-27].  The Court did not find any error of law or procedural unfairness or unreasonableness in the decisions of the Director and the Board.  Even in his Form 86 or supporting affirmation, the applicant did not provide any evidence or reason why he was unable to submit the SCF within time. Accordingly, the Court found that there is no merit in his intended judicial review.

11.  In his supporting affirmation for his present application to appeal out of time, the applicant alleged that the Court’s decision was not fair as he was not allowed to explain or clarify his case and he was not aware that he could request an oral hearing. The complaint is devoid of any merit. The applicant did not request an oral hearing in his Form 86 or supporting affirmation. Ignorance of the law or his legal right is not a valid ground of appeal. Moreover, at the hearing before the Court, he only asked for more time without any explanation or clarification of his claim. And up to now, there is no explanation and evidence in support to explain his failure to return the SCF within the extended time limit. I do not find any basis to challenge the decision of the Board.

Conclusion

12.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for him to appeal.  Accordingly, I refuse to grant extension of time, and the summons dated 2 March 2021 taken out by the applicant is dismissed.