RE HUSSAIN ZUBAIR

CAMP 188/2019

[2020] HKCA 67

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 188 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 40 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 30 April 2019 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 31 July 2019.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 15 December 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 27 July 2016 and 14 July 2017 rejecting his non-refoulement claim.

5.  The applicant is a Pakistani national.  He entered Hong Kong illegally, and was arrested by the police on 21August 2014.  On 26 August 2014, he made a non-refoulement claim based on his fear of being harmed or killed by supporters of Pakistan Muslim League (N) (“PMLN”).  The applicant’s claim was set out in details in the Director’s first decision at [6], and summarised by the Judge in [4] of the Form CALL-1 dated 30 April 2019[1].  The applicant’s case, in gist, is that he was a member of the Pakistan People Party (“PPP”), but the majority of the population where he lived were supporters of PMLN.  After he reported an assault committed by the PLMN supporters to the police, he received threats and was, on one occasion, nearly abducted from his home.  He had to leave home to live in another area to avoid trouble.  Fearing that his enemies would track him down, he came to Hong Kong.   

6.  By his two decisions, the Director rejected the applicant’s claim.  The first decision covers the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds, and the second decision covers the BOR 2 risk[5] ground.

7.  The applicant’s appeal to the Board was heard on 9 November 2017.  By its decision dated 15 December 2017, the Board dismissed the appeal.  Primarily, the Board rejected the applicant’s case as being incredible and found he was not a genuine non-refoulement claimant. The Board considered that, in any event, internal relocation and state protection were reasonably available to him.

8.  On 8 January 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He did not set out any ground for seeking relief, other than stating in the affirmation that his life was in danger and he could not go back to Pakistan. 

9.  The Judge considered the application on paper.  She was of the view that the intended judicial review was not reasonably arguable, and had no realistic prospect of success.  She set out her reasons for refusing to give leave to apply for judicial review at [10] and [11] of the Form CALL-1 as follows:

“10. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

11.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

10.  The 14-day period for the applicant to appeal the decision of the Judge, as stipulated in Order 53, rule 3(4) of the Rules of the High Court, expired on 14 May 2019.  On 15 May 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The Judge heard the application on 31 July 2019, and by her decision handed down on 31 July 2019[6] dismissed the application.  On 8 August 2019, the applicant filed the present summons and an affirmation in this Court to renew his application for leave to appeal out of time.

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

12.  The applicant was late by one day, which is a minor delay.  Before the Judge, the applicant explained that he did not receive the Form CALL-1 in time as he was in the process of changing his address.  Given it is a minor delay, we are prepared to accept the applicant’s explanation.  What is more important, however, is the prospect of the applicant’s intended appeal.  

13.  The applicant set out the following grounds of in his supporting affirmation:

(1) There was no legal representation for the Board’s hearing and the hearing for his leave application before the Judge.

(2) He was not given sufficient time to read the appeal bundle for the Board’s hearing.

(3) There was a lack of language assistance and he was weak in English.

(4) The Court should reconsider his claim and send his case back to the Immigration Department for re-screening.

14.  In the written submission, apart from reiterating the arguments set out in his affirmation (see [13] above), the applicant also complained that the Adjudicator acted in a hostile manner and had made up his mind before the hearing.  He further asked the Court to visit his country and to investigate his case properly.    

15.  We are of the view that the applicant’s arguments do not constitute viable grounds of appeal.  In an appeal to this Court, the focus is on the decision and reasons of the judge in the court below.  The applicant, however, has not pointed to any error in the Judge’s decision and reasons.  His complaints all relate to the Board’s decision.  But he had not provided any ground for relief in the application for leave to apply for judicial review and the application for extension of time to appeal before the Judge.  It is not open to him to raise new arguments that had not been argued in the court below.  We have, in any event, reviewed the Board’s reasons and do not see any basis for interfering with its findings and decision. 

16.  We are of the view that the intended appeal has no prospect of success.  This being the case, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 8 August 2019.

17.  As the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.