RE BAIG AZMAT

CAMP107/2021

[2021] HKCA 1771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 107 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2423/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung given on 21 May 2020 refusing to grant extension of time for his application for leave for judicial review and dismissing his application for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 15 March 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 14 June 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  His immigration history and the procedural history of his non-refoulement claim have been summarized by the judge at [4] – [15] of CALL-1 Form.  In summary, the applicant, a national of Pakistan came to Hong Kong illegally and was arrested on 16 September 2008.  He raised a torture claim, based on fear for his life because he had witnessed a murder by politically connected persons.  He subsequently withdrew the claim in 2012 and unsuccessfully sought to reopen it in 2013.  Thereafter in 2014 he lodged a claim for non-refoulement protection based on similar facts.  However, in 2015 he withdrew this claim and sought unsuccessfully to reopen it in 2016.  The Director refused to allow him to reopen his claim as the Director did not accept that there had been any change of circumstances that would increase its prospects of success.

3.  The applicant appealed to the Torture Claims Appeal Board.  The Board dismissed the appeal on 15 March 2017 (“Board’s Decision”) without a hearing.

4.  At [16] of the Board’s Decision, the Board held that “[the applicant] has failed to show any change of circumstances that could not reasonably have been foreseen when he gave notice withdrawing his claim; and when taken together with material previously submitted for the claim, there was nothing new that could increase the prospect of success of his claim; or there were any special circumstances that would be unjust not to allow him to re-open the claim”.

The judge’s decision

5.  The applicant filed a Form 86 on 31 October 2018 seeking to judicially review the Director’s Decision, which contained no ground for seeking relief.

6.  In the affirmation filed on the same day, the applicant deposed that:

“I want to judicial review the [Board’s Decision]. Their decision is unfair and unreasonable.”

7.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [22] to [28] of the CALL-1 Form:

“22. The burden is on the applicant to show to the Board evidence that substantiates his claim. Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §51. The Board found that he had failed to do so.

23. It is also the applicant’s burden to show to this Court why he considers that the Board’s Decision is unfair and unreasonable. Re: TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §19.

24. Had the applicant appeared before this Court, he might produce other documentary evidence in support of his fear of being killed if he returned to Pakistan. I would consider his evidence since he did not have a hearing before the Board. However, he had failed to attend the hearing without giving any reason for his absence.

25. I do not find any error on the part of the Board to have to come its decision.

26. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

27. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to extend time for him to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

28. It is further directed that:

a. If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b. When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c. The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d. If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e. Liberty to apply.”

Application for extension of time to appeal and grounds for appeal

8.  In the CALL-1 Form, the applicant was directed by the judge to seek leave to appeal against the decision if the applicant wished to appeal.  The applicant did so within 14 days from the CALL-1 Form but by the time his application was considered by DHCP CP Pang, it was no longer necessary to seek leave to appeal following the Court of Final Appeal decision in H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22 (handed down on 14 July 2020) which held that leave to appeal was not required in respect of an application for leave to bring judicial review proceedings that had been dismissed for delay.  The judge granted extension of time for the applicant to file his notice of appeal on 20 October 2020 without a hearing.

9.  The applicant did not do so within the prescribed time.  Instead, by a summons filed on 9 April 2021, the applicant applied for an extension of time to appeal before this court.  In the summons he stated that:

“The High Court refused my leave to apply for judicial review. I did not get any letter from the High Court. So I could not appeal in time, but High Court did not extend my time too, please extend time for me.”

10.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 25 May 2021, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

11.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

12.  The applicant claimed that he did not get any letter from court.  However, he did not explain why that might be the case.  We are therefore of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal. 

13.  We nonetheless go on to consider the merits of the intended appeal.

14.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker.  On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.

15.  As the applicant has wholly failed to identify any error in the judge’s decision, there is no viable ground of appeal.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 9 April 2021 is dismissed accordingly.