RE SHIYAD ALI

HCAL 600/2017

[2018] HKCFI 2089

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 600 OF 2017

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D E C I S I O N

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Introduction

1.  The Applicant seeks leave to appeal out of time against my order dated 2 August 2018 in his application for leave for judicial review in HCAL 600/2017.

2.  The Applicant is a national of Pakistan. He claimed he would be harmed or killed by the Taliban in his country.

3.  The Applicant entered Hong Kong illegally in December 2011. He lodged a non-refoulement claim only after he was arrested six months later in mid-2012.

4.  In the ensuing two-tier screening process (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

5.  The Applicant filed an application for leave for judicial review on 7 September 2017. He named the Board as respondent and the Director as interested party.

6.  I heard the Applicant's application for leave for judicial review on 12 June 2018. On 2 August 2018, I refused to grant leave for the Applicant's sought review.

7.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the Applicant had 14 days to lodge an appeal. The appeal period expired on 16 August 2018. He failed to do so.

8.  Seven days after the deadline, i.e. on 23 August 2018, the Applicant took out the present summons to seek leave to appeal out of time against my order made on 2 August 2018. In the summons and his affirmation, the Applicant alleged he did not receive the CALL-1 form and court order on time. 

9.  The Applicant had not produced any draft notice of appeal. In the summons, he complained my order on 2 August 2018 was ‘unfair and unreasonable’.

10.  In [3] - [5] of his affirmation, the Applicant said: –

3.    However, I have since taken legal advice and, I understand that there is a good grounds of appeal that was not necessarily considered at the stage of applying for the leave for judicial review. Obviously, this was my own oversight brought on by the fact that I was acting in person at this stage of proceedings. Additionally, I was informed that the director and the adjudicator did not saw the grounds to reverse their decision. I would prefer to submit the order from the High Court along with the affirmation and summons as exhibit “A”.

4.    I believe that the merits of this ground of appeal constitute sufficient reason justification for the court to exercise its discretion in allowing this appeal put of me.

5.    Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my appeal/petition.

Hearing

11.  The present summons was listed for hearing on 6 September 2018.  The Applicant appeared in person. He confirmed all the grounds of his application were in the documents.

12.  I invited the Applicant to explain his grounds of appeal to show that he had a reasonable prospect of success in his intended appeal. He could not but merely said my decision on 2 August 2018 was not right.

13.  The Applicant said a friend helped him to prepare the summons and his affirmation. His friend was an educated man but not a lawyer. The Applicant said he needed at least a day or two to talk to his friend again before he could state the grounds of appeal.

14.  I refused to adjourn the matter. The Applicant had had ample time to prepare himself for the current hearing. He was obliged to tell the court what the grounds of his intended appeal were for the court to decide whether leave to appeal out of time should be granted.

15.  The Applicant was unable to state his grounds of appeal verbally. I then stood the matter down for him to write down the grounds. I told him he could instruct the interpreter to write in English for him. The Applicant still refused to provide any details of his grounds of appeal. He wanted the matter to be adjourned for him to speak to his friend, who was not a lawyer.

16.  When the Applicant knew the proceeding would not be adjourned, he claimed he was unwell. However, he had appeared entirely normal in court all along. I thus continued with the hearing. Despite being told he had to show the court a reasonable prospect of success in his intended appeal, the Applicant did not explain or supplement any appeal ground.

Discussion

17.  In considering whether to extend time for appealing against an order to refuse leave for judicial review, the court will have regard to: (i) the length of delay; (ii) the reasons for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the putative respondent if extension of time was granted.[5]

18.  On 2 August 2018, I refused the Applicant's application for leave for judicial review in HCAL600/2017. The Applicant failed to file an appeal within 14 days. He said he did not receive the CALL-1 form and court order despite his address was correct. The Applicant alleged he got a copy of those from the court office only. [In the court file, there was indeed a receipt of payment of $18 (dated 21 August 2018) for such photocopying.]

19.  The Applicant's claim that he had not received the CALL-1 form and court order cannot be dismissed as fanciful. I am prepared to accept his explanation.

20.  The Applicant took out the present summons on 23 August 2018. That was seven days after the 14-day deadline for appeal filing. The delay was not a long one. The prejudice to the putative respondent would be small.

21.  However, I still have to consider the prospect of the Applicant's intended appeal which is a crucial assessment in an application to extend time.[6] Even though the Applicant can explain for the lateness, he still has to show there is a reasonable prospect of success of the intended appeal.

22.  When I refused the Applicant’s application for leave for judicial review on 2 August 2018, I set out the reasons in [35] - [47] of the CALL-1 form as follows: –

Discussion

35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

37. The Applicant complained that he received the appeal bundle only a few days before the appeal hearing.

38. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

39. The Director confirmed in his letter dated 28 June 2018 that the appeal bundle was served on the Applicant on 7 February 2017. It was 6 working days (or 5 working days excluding a Sunday) prior to the Board hearing scheduled for 13 February 2017. Thus, the bundle was served on the Applicant in time.

40. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the appeal bundle was difficult or voluminous.

41. In court, the Applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.

42. A few days were certainly not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for the appeal. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. There is also no evidence to show the Applicant was confused as to what happened.

43. The Applicant complained he was not legally represented then. He had been represented by the Duty Lawyer Service up to the Director rendered his decision on 8 October 2015. The Applicant failed to show this court how his case would be undermined or prejudiced by the lack of further legal representation only in the later stages of the screening process. The Court of Appeal repeatedly stated that an applicant of non-refoulement claim did not have an absolute right to free legal representation at all stages of the proceedings.

44. There are other vague complaints raised by the Applicant. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant’s complaints can stand. In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator’s report showed he was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

45. The Director is an interested party. The Applicant complained the Director failed to assess his claim with respect to BOR2 risk. Such accusation is wrong. The Director had considered the Applicant's claim with respect to BOR2 risk in his further decision dated 19 December 2016. The Applicant had not provided additional facts on that issue. The Director was entitled to consider the Applicant's claim with respect to BOR2 risk without holding further interview. The Director's further decision on BOR2 risk dated 19 December 2016 should be read in conjunction with his earlier decision dated 8 October 2015 with respect to the other three applicable grounds, where the Director had clearly stated his analysis of the facts and information relevant to the Applicant's claim.

46. I have reviewed the Director’s decision plus further decision under ‘rigorous examination and anxious scrutiny’. I am satisfied his findings, conclusions and decisions were not Wednesbury unreasonable. What has been said of the Adjudicator in para. 44 above is true of the Director too. He made no errors of law and there was no procedural unfairness. The Director had also achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

47. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.

23.  It is said in Nupur Mst v Director of Immigration [2018] HKCA 524 that 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 and the prospect of an appeal is assessed by reference to his intended grounds of appeal.  The Court of Appeal would not examine the decision of the Board afresh as if it is a fresh application for judicial review.

24.  It is also repeated in Re Islam Rafiqul that “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 applicant 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.”[7]

25.  In the present case, in seeking leave to appeal out of time the Applicant has only put forward some vague allegations as grounds of his intended appeal (see paras 9-10 above). He fails to state any viable ground for the Court of Appeal (if there were an appeal) to consider that my order made on 2 August 2018 should be reversed. The Applicant fails to show he has any reasonable ground to argue on appeal and thus fails to show his intended appeal has a reasonable prospect of success.

Conclusion

26.  I would not grant extension of time to the Applicant to bring an appeal without any reasonable prospect of success. The summons filed on 23 August 2018 is therefore dismissed.