RE ZUBAIR MUHARRAM

HCAL 1452/ 2018

[2020] HKCFI 2869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1452 of 2018

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DECISION

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Background

1.  On 18 November 2019, Deputy High Court Judge Lung (“the Judge”) refused to grant leave 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 17 April 2018 and the decision of the Director of Immigration (“the Director”) dated 25 May 2017, rejecting the applicant’s non-refoulement claim.

2.  The Judge refused to grant leave to the applicant to apply for judicial review for reasons stated in [19-27] of his decision (Form CALL-1). The Judge found that the applicant was unable to give any satisfactory reason for his absence in the hearing before the Board. The grounds put forward by him were irrelevant and he had no ground in support of his application. Significantly the Judge found in his conclusion that the applicant’s intended application for judicial review had no reasonable prospect of success.

3.  By a summons filed on 24 December 2019, the applicant appears to be applying for extension of time to appeal against the Judge’s refusal of leave. The application is considered on this basis. The applicant had 14 days from the order of the Judge to apply to appeal that decision 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 2 December 2019. He was therefore late by about 3 weeks with his intended appeal. 

4.  In his summons and supporting affirmation of 24 December 2019, the applicant did not explain clearly the reason for his late application. He said “I am late for apply due to lack of knowledge and insufficient sources. Please accept my late filing application…” (sic).  Nor did he provide any draft or proposed grounds of appeal, or particulars of errors or unfairness of the Judge.

5.  At the hearing, he was vague about how and when he received the Judge’s order. He said he had nothing to add to what he had said in his documents.

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.  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.  

8.  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.

9.  At the hearing on 30 September 2020, the applicant was vague about the time he learned about the Judge’s order and why he was late in his application. He provided no satisfactory reason why he did not receive the Judge’s order on time.

10.  According to the court’s record, the Judge’s order and the Form CALL-1 were properly served upon the address given at that time.  The documents were sent to him by post and have not been returned to the High Court as unclaimed, presumably the documents reached the destination.  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. 

11.  While the length of delay in the present application was not very significant (about 3 weeks), the applicant failed to provide any good reason to explain for the delay. The delay is therefore not excusable.  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, the applicant cannot show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.  

12.  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.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

13.  Put simply, the applicant’s claim was based on the fear that, if refouled, he would be harmed or even killed by his enemies and jailed because of a false accusation of murder charge for which he was convicted by a court and sentenced to life imprisonment. He obtained bail pending appeal and he absconded from bail. The Director rejected the applicant’s non-refoulement claim on all applicable grounds.

14.  The applicant appealed to the Board. He was absent from the hearing before the Board and was nowhere to be found. The Board proceeded to determine without a hearing. It found that he failed to substantiate that he had a well-founded fear of being harmed by his enemies from PML(N) political party or genuine and substantial risk of being subjected to any torture or CIDTP. It had no doubt that the applicant had received a fair trial by a proper court of justice in Pakistan and a sentence of life imprisonment, not being a result of arbitrary justice. It remarked that the applicant is a “fugitive from justice”. The Board concluded that he failed to substantiate that he was qualified for non-refoulement protection.

15.  The grounds of judicial review were summarized by the Judge as follows:

（1）  he did not receive the Notice of hearing from the Board;

（2）  he did not have legal representation for his appeal;

（3）  the Adjudicator should not access his case on paper; and

（4）  the Board’s Decision was not translated to him.

16.  In his decision dated 18 November 2019, the Judge considered that the application for leave to apply for judicial review of the Director’s decision failed in limine: Re Moshsin Ali [2018] HKCA 549. The application for leave to apply for judicial review of the Board’s decision was a late application. In any event, the Judge considered the merits of his application. He found that the applicant was unable to give any satisfactory reason for his absence at the scheduled hearing before the Board. The applicant agreed that he had undergone a trial in Pakistan for murder. The Judge found that the grounds of review were simply irrelevant in the circumstances of this case and the application for judicial review has no reasonable prospect of success.

17.  I agree with the Judge that when the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. 

18.  The applicant’s first ground for judicial review cannot stand when the Judge found that the applicant was unable to give any satisfactory reason for his absence from the hearing before the Board. The second ground has no merit as it is well established that the high standards of fairness do not demand legal representation being made available all the time to a non-refoulement claimant. When the applicant was sent a notice of hearing at the address he provided, could nowhere to be found and the Board did not really challenge the facts advanced by the applicant, the course adopted by the Board cannot be said to be unfair. Ground 3 would fail. Ground 4 is not arguable as the applicant’s affirmation prepared in English dated 24 July 2018 shows that the Board’s decision must have been explained to him before the affirmation was prepared.

19.  The applicant has not identified any grounds of appeal or errors in the Judge’s decision in his summons or supporting affirmation for this application.  None could be ascertained from the papers or at the hearing. He provided nothing at the hearing before me to suggest any errors of the Judge.

20.  Having considered the materials before me, I agree with the Judge that the applicant’s application for judicial review has no reasonable prospect of success. The Judge was entitled to refuse to grant extension of time and refused leave to apply for judicial review.

Conclusion

21.  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 24 December 2019 taken out by the applicant is dismissed.