RE MUHAMMAD FIAZ

HCAL 1967/2018

[2020] HKCFI 3125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1967 of 2018

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DECISION

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Background

1.  On 20 January 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant 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 25 April 2017.  The applicant’s non-refoulement claim was rejected by the Director of Immigration (“the Director”) by two decisions dated 16 September 2014 and 16 January 2017 respectively.  The former decision dealt with torture risk, BOR 3 risk and persecution risk.  The latter covered the BOR 2 risk.  The applicant appealed both decisions of the Director to the Board.  The Board, by its first decision dated 23 September 2016, refused the late filing (1 year and 8 months late) of the Notice of Appeal against the Director’s first decision without a hearing.  By its second decision dated 25 April 2017 without a hearing, the Board refused the appeal against the second decision of the Director (relating to BOR 2 risk).  The adjudicator of the Board was the same adjudicator giving the first decision of the Board.

2.  The applicant filed his Form 86 on 18 September 2018 for leave to apply for judicial review of the “Decision from Immigration dated 25^th April 2017”. The Judge took it to mean the second decision of the Board dated 25 April 2017.

3.  The Judge dismissed the application for reasons stated in [14-22] of his decision (Form CALL-1).  He found the application was late for more than 13 months which must be regarded as seriously undue.  Significantly the Judge found there is no merit in his applicant.  The Director had considered the merits of the case and concluded that it was a private dispute and the level of risks as claimed was low.  Besides, state protection and internal relocation are available to the applicant.  There is no evidence in support of his BOR 2 risk.  There was no evidence to show that the Board was in error in coming to its second decision in refusing the appeal against the Director’s second decision (relating to BOR 2 risk).  The Judge found that the applicant failed to show that he has a reasonable prospect of success in his intended application for judicial review.  For these reasons, the Judge refused to extend time for application for judicial review against the second decision of the Board dated 25 April 2017.

4.  The applicant filed a summons on 1 June 2020 in which he stated he “want(s) (to) review order of judicial review” and he needs some more time to stay in Hong Kong.  I will treat the summons as an application for extension of time to appeal against the Judge’s refusal.

5.  On 14 July 2020, the decision of H v Director of Immigration [2020] HKCFA 22 was handed down by the Court of Final Appeal.  The CFA held that the refusal by a judge of an extension of time to make an application for judicial review is part and parcel of a refusal to grant leave to apply for judicial review.  Therefore, the decision is appealable as of right by reason of Order 59, rule 21(1)(g): paragraph 42 of the judgment.  There is no further need under section 14AA of the High Court Ordinance (Cap 4) for an applicant to seek leave to appeal before the Court of First Instance judge before he/ she may appeal directly against the judge’s refusal to extend time to apply for leave for judicial review.

6.  However, the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court ended on 3 February 2020.  He was therefore late by almost 4 months with his intended appeal when he filed his summons on 1 June 2020.  Allowance has to be given to the applicant for the closure of High Court Registry in the two General Adjourned Periods (29 January to 22 March 2020, and 30 March to 3 May 2020) imposed for public health concerns due to the COVID-19 pandemic.  The High Court Registry was reopened on 6 May 2020.  Even only counting from that date, the delay was still almost one month late.

7.  In his summons and supporting affirmation of 1 June 2020, the applicant did not explain the reason for his late application.  Nor did he provide any draft or proposed grounds of appeal, or particulars of errors or unfairness of the Judge.  He only stated that he needs more time to stay in Hong Kong, his life is still in danger and he has two children here.

8.  At the hearing, he explained that he did not receive the Judge’s decision as he had changed his address without informing the court.  He did not know about the decision until he was informed about it by an immigration officer “1 year ago”.  As to his grounds of appeal, he had nothing to add to what he had written in his documents.

Discussion

9.  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.

10.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

11.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

12.  The applicant’s explanation that he was informed of the court’s decision by an immigration officer 1 year ago cannot be correct as the Judge gave his order on 20 January 2020.  In any event, the explanation is not acceptable as he did not inform the court of his new address.  It is the duty of a litigant to give the court an address and update it to which correspondence or notice can come to the litigant’s attention in a timely manner.  The consequences of any delay arising from failing to do so will fall upon the litigant.

13.  The delay is significant and he offered no valid explanations for it.  The delay is inexcusable.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal.  In any event, I find the applicant has no prospect of success in his intended appeal.

14.  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.

15.  The basis of the applicant’s non-refoulement claim is that he would be harmed or killed by the supporters of a political party because he was a supporter of another party, if refouled to Pakistan.  He also feared that he would be arrested by police because of his involvement in a fight between the two parties.

16.  In his decision dated 20 January 2020, the Judge noted that the applicant’s application for judicial review was late for more than 13 months.  He did not accept the reasons for the delay (the applicant claimed he changed address and had to look after his children) which the Judge regarded as “seriously undue”.

17.  Having considered the factors in considering whether to give extension of time as explained in AW v Director of Immigration and William Lam CACV 63/2015, the Judge noted that the merits of the substantive application are the prime consideration in this case.  The Judge also correctly referred to the CFA’s case in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 and the judgment of Hartmann J in Law Chun Loy v Secretary for Justice, HCAL 13/2005.  He found that there is no merit in the applicant’s application.  He reasoned that the Director had concluded that the perceived fear arose out of a private dispute between two groups of people and the level of risk of harm was low.  Besides, state protection was available to him and internal relocation was a viable option to him.  There is no evidence in support of the BOR 2 risk.  There is no evidence to show that the Board was in error.

18.  The Judge has considered the decision of the Board with rigorous examination and anxious scrutiny finding that the Board was not in error in coming to its second decision.  I do not find anything amiss in the Board’s analysis on its determination of the BOR 2 risk.  On the facts of the case, I cannot see any additional basis for advancing a case on such risk, independent from the BOR 3 risk, the persecution risk, and the torture risk.  The Judge’s findings and conclusions are plainly reasonable.

19.  The applicant has not identified any grounds of appeal or errors in the Judge’s decision.  None could be ascertained from the papers or at the hearing.

20.  Having considered the materials before me, I am of the view that the decisions of the Board and the Judge’s observations are fully justified.  I agree with the Judge that there was a serious delay in the applicant’s application for judicial review.  The delay was inexcusable.  There is also no merit in the applicant’s claim.  I share the Judge’s view that the applicant’s application for judicial review of the Board’s second decision has no reasonable prospect of success.  The Judge was entitled to refuse to grant extension of time for leave to apply for judicial review.

21.  There is also an inexcusable undue delay in the present application for extension of time to appeal.

Conclusion

22.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time, and the summons dated 1 June 2020 taken out by the applicant is dismissed.