RE AMMAD AZAM AND AND ANOTHER

HCAL 1474/2018

[2021] HKCFI 445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1474 OF 2018

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D E C I S I O N

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1.  On 9 July 2020 I refused to grant leave to the applicants, a father from Pakistan and his minor son born in Hong Kong, to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing their non-refoulement claim upon finding none of the grounds put forward by them reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in the process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in their intended application.

2.  The applicants now by a summons issued on 17 September 2020 seek extension of time to appeal against that decision, as the 14-day period for them to file their appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A expired on 23 July 2020, and hence they were late by about 8 weeks with their intended appeal.

3.  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: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicants’ case, a delay of 8 weeks must be considered as substantial or excessive, for which the 1^st applicant explained at the hearing that they never received the decision in the mail, and were therefore not aware of it until sometime in September 2020 when they reported on their recognizance and were informed by their immigration officer, but by then they were already out of time with their intended appeal.

5.  The court record however shows that the decision was sent on the same day to the applicants’ last reported address which is the same as shown in the 1^st applicant’s affirmation filed in support of their present application, and that it has never been returned through undelivered post. In the circumstances, and in the absence of any corroborating or documentary evidence in support of their bare assertion, I am not satisfied that the applicants have provided any good reason for their delay.      

6.  More importantly, nor did they put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in their summons or affirmation, and at the hearing of his summons the 1^st applicant merely repeated their claim as before and that he has been staying in Hong Kong for many years already and hence should be allowed to remain without refoulement.

7.  While considering the prospect of their intended appeal, I am mindful of the fact that the 2^nd applicant, a minor now at the age of 4 years old being born in May 2016 in Hong Kong, was not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, nor was he in his appeal before the Board, and hence it would be necessary to separately consider and examine whether his claim had been properly determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see if there are matters that may support potential minor-specific non-refoulement bases that may not have been properly advanced to the Board due to lack of legal representation in his appeal before the Board, as the proper approach of which have recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 in which the judgment was handed down after my decision, and which held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

8.  As stated in my decision, the non-refoulement claim raised by the 1^st applicant upon his arrival in Hong Kong in 2003 was based on his fear of revenge taken by the family of the victim killed by him in an accident which occurred in 1990 in Pakistan, and while the claim of the 2^nd applicant was premised fundamentally on his father’s claim, even on the 1^st applicant’s own case at the highest, it is plain that the threat of revenge was directed only against the 1^st applicant in Pakistan some 26 years before the 2^nd applicant was born in Hong Kong, of whom the perpetrators clearly would not have known or anticipated back in 1990, let alone to form any intention to harm. Nor could have the 2^nd applicant given any evidence in relation to such threat or to give instruction to his lawyer if he were legally represented in his appeal before the Board or in these proceedings.

9.  As such I do not see any material that may give rise to any concern of any non-refoulement grounds which relate specifically only to the 2^nd applicant that had not been advanced to the Board or considered by it due to the lack of legal representation for him before the Board, and of which I shall treat as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended appeal, as I have also found in the case of the 1^st applicant’s. As such and in the absence of any error in the decision being clearly and properly identified by the applicants, I do not see any prospect of success in their intended appeal.

10.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse their application for extension of time to appeal, and dismiss the applicants’ summons.