RE AMJAD

HCAL 754/2017

[2019] HKCFI 2100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 754 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 the order by Deputy High Court Judge Woodcock (“the Judge”) dated 25 July 2018 in his application for leave for judicial review in HCAL 754/2017.

2.  The Applicant is a national of Pakistan. He is now aged 31.

3.  The Applicant left Pakistan on 5 November 2015. He was refused permission to land in Hong Kong on 11 November 2015 but lodged a non-refoulement claim on the same day. He claimed he would be harmed or killed by a relative of his wife. That man was called Malang belonging to the Pakistan Tehreek-e-Insaf Party. Malang had wanted to marry the Applicant’s wife. She refused and later married the Applicant.

The Director's decision  

4.  On 26 January 2016, the Director of Immigration (“the Director”) rejected the Applicant's non-refoulement claim with respect to (i) risk of torture[1], (ii) risk of persecution[2] and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] [the Director's 1^st decision]. This decision was sent to the Applicant care of the Duty Lawyer Scheme, which was representing the Applicant. The deadline of appeal was 14+2 days later,[4] i.e. 11 February 2016. The Torture Claims Appeal Board (“the Board”) only received the Applicant’s notice of appeal against the Director's 1^st decision 10 odd months later. That notice was dated 6 January 2017. [See para 7 below.]

5.  On 14 December 2016, the Director further rejected the Applicant's claim with respect to the last applicable ground: risk of violation of the right to life (BOR2 risk)[5] [the Director's 2^nd decision]. This decision was sent to the Applicant’s address. The deadline of appeal was 14+2 days later, i.e. 30 December 2016. Again, the Applicant filed his appeal late. [See para 6 below.]

6.  The Applicant filed with the Board a notice of appeal against the Director's 2^nd decision on 4 January 2017 (BOR2 appeal). It was 5 days late. He did not provide any reason in the notice of appeal for late filing. [Six months later, he sent to the Board a letter dated 5 July 2017 to say he had submitted his BOR2 appeal by post but the Board did not get it so ‘I submit 2^nd day’.]

7.  Two days after the Applicant had filed his BOR2 appeal on 4 January 2017, he filed a notice of appeal against the Director's 1^st decision in relation to torture risk, persecution risk and BOR3 risk. It was dated 6 January 2017. The appeal was over 10 months late. The Applicant applied for late filing. In this notice, he said he had earlier posted a notice of appeal against the Director's 1^st decision by registered post but he had lost the post receipt. The Applicant said he was lately informed by the Board that they had not got his earlier notice of appeal so he filed a new one.

The Board's decision

8.  The Adjudicator considered the Immigration Ordinance, the reason given by the Applicant, the lack of documentary evidence to support his reason for the delay and all the circumstances. He did not accept the Applicant had any reason for the delay of over 10 months in his appeal against the Director's 1^st decision (torture risk, persecution risk and BOR3 risk). On 25 April 2017, the Adjudicator rejected the Applicant’s late appeal against the Director's 1^st decision [the Board's 1^st decision].

9.  The Adjudicator later considered the Applicant's appeal against the Director's 2^nd decision regarding BOR2 risk. He took into account the relevant law and all the circumstances. He considered a 5-day delay was still substantial and he did not find the Applicant’s explanation reasonable. On 22 September 2017, the Adjudicator rejected the Applicant’s late appeal against the Director's 2^nd decision [the Board's 2^nd decision].

Judicial review

10.  The Applicant applied for leave for judicial review on 10 October 2017. He named the Director and the Adjudicator as respondents. However, he only listed the Director's 1^st decision (torture risk, persecution risk and BOR3 risk) and the Board's 2^nd decision (BOR2 risk) as the decisions he would like to seek relief of.

11.  The Applicant complained the Director did not properly consider the issues of state acquiescence and state protection.

12.  The Applicant complained the Adjudicator failed to appreciate that the delay of appeal was not due to his mistake. He repeated he had filed his appeal on time but the Board did not get it, so he filed appeal again. He said the Adjudicator failed to make sufficient inquiry before determination. The Judge heard the Applicant on 14 March 2018.

13.  According to Order 53 rule 4 of the Rules of the High Court, any application for leave for judicial review should be made within three months from the date of the decision which was to be reviewed.

14.  Regarding the Director’s 1^st decision (dated 26 January 2016), the application for leave for judicial review was over 17 months. The Judge considered that was a lengthy delay. There was no application for extension of time and no explanation for the delay. The application did not raise any questions of general public importance. The Judge ruled that the delay alone was enough to reject the Applicant’s application with respect to the Director’s 1^st decision.

15.  As to the Board's 2^nd decision (dated 22 September 2017), the Judge had considered the Adjudicator’s decision-making process, the chronology and history of the application process and how the Adjudicator came to his decision. The Judge did not find any error of law, procedural unfairness or failure to adhere to the required high standards of fairness. The Adjudicator’s decision was not Wednesbury unreasonable. The Judge concluded the Applicant's complaint against the Adjudicator’s 2^nd decision was not reasonably arguable.

16.  The Judge gave her decision on 25 July 2018. It was sent by ordinary post on that day to the Applicant’s Sham Shui Po address as stated by the Applicant in Form 86. There was no returned mail.

17.  The 14-day appeal deadline ended on 8 August 2018. The Applicant failed to file an appeal in time. On 4 September 2018, he took out a summons to apply for leave to appeal against the Judge’s decision out of time. He said he did not get the decision and only learnt of it on 24 August 2018.

Grounds of intended appeal

18.  In his affirmation dated 4 September 2018, the Applicant listed 14 grounds:

i. no reasonable basis for rejecting his claim as incredible;

ii. failure to consider extended state acquiescence;

iii. failure to consider country-of-origin information ("COI");

iv. the decision-maker was not the interviewing officer;

v. failure to consider relevant information and placing undue weight on irrelevant information;

vi. failure to consider human right violation and state protection;

vii. wrong consideration on irrelevant, inaccurate or incorrect facts;

viii. failure to call for psychiatric and/or psychological reports;

ix. wrong standard of proof;

x. (repeating Ground i);

xi. (repeating Ground ii);

xii. (repeating Ground iii);

xiii. (repeating Ground iv);

xiv. wrong consideration on internal relocation.

Hearing for leave to appeal

19.  On 26 September 2018, I heard the Applicant on his application for leave to appeal out of time. The Applicant said he did not receive the Judge’s decision dated 25 July 2018. He complained his Sham Shui Po address was not safe for receiving mail. He only learnt from the Immigration Department that his case was over when he reported for recognizance. He thus went to the court to make enquiry and obtained a copy of the Judge’s decision. Then he took out the current summons to ask for extension of time to appeal against the Judge’s decision.

20.  The Applicant was told he must show a reasonable prospect of success of his intended appeal. He replied all the grounds were in his affirmation and he had nothing to add.

Discussion

21.  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.[6]

22.  The Applicant said he did not receive the Judge’s decision dated 25 July 2018. When he learnt from the Immigration Department in late August 2018 that his case was over, he went to the court to make enquiry and obtained a copy of the Judge’s decision. He took out the current application for leave to appeal out of time on 4 September 2018. That was 27 days after the appeal deadline of 8 August 2018.

23.  I am prepared to accept the Applicant’s saying that he did not receive the Judge’s decision sent to his Sham Shui Po address. However, he still has to show there is a reasonable prospect of success of his intended appeal which is a crucial assessment in an application for leave to appeal.[7]

24.  The Applicant said all the grounds of his application were in his affirmation dated 4 September 2018. Apparently, the 14 grounds set out there were complaints against the Director rather than against the Adjudicator or the Judge since the Adjudicator and the Judge had not discussed those matters in their decisions. The Adjudicator refused to grant the Applicant extension of time for his late appeals. The Judge endorsed the Adjudicator’s decision. She also ruled the Applicant was too late to apply for leave for judicial review of the Director's decision.

25.  The Applicant failed to state any complaint against the Judge’s decision. He could not point out where the Judge’s decision had gone wrong.

26.  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.

27.  It is also stated 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.”[8]

28.  The Applicant could not state any viable ground for the Court of Appeal to consider that the Judge’s order dated 25 July 2018 should be reversed. He failed to show any reasonable prospect of success of his intended appeal.

Conclusion

29.  I refuse to grant the Applicant leave to appeal out of time because he fails to show he has any viable ground to argue and thus fails to show any reasonable prospect of success of his intended appeal. The summons dated 4 September 2018 is therefore dismissed.