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HCAL 1158/2017
[2019] HKCFI 1949
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1158 OF 2017
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| Re: |
Habib Muhammad |
Applicant |
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Before: Deputy High Court Judge Josiah Lam in Chambers
Date of Hearing: 21 September 2018
Date of Decision: 9 August 2019
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D E C I S I O N
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Application for leave to appeal out of time
1. The Applicant seeks leave to appeal out of time against my order dated 30 July 2018 in his application for leave for judicial review in HCAL 1158/2017.
2. The Applicant is a national of Pakistan. He is now aged 42 (DOB: 1 January 1977).
3. The Applicant claimed he would be killed by supporters of the Pakistan Muslim League (N group) [“PMLN”], which was the ruling party in Pakistan. The Applicant was a supporter of an opposition party, the Pakistan People’s Party (“PPP”).
4. The Applicant said he joined PPP in 1995. He had quit for some time before rejoining the party in 2014. He helped the party in campaign activities though he did not hold any position.
5. In 1995, the Applicant and some PPP members had a fight with the PMLN people. The PMLN people made false allegations to the police. The Applicant and his companions were then arrested by the police. They were detained for 22 days before being released on bail. The case dragged on but they were finally cleared of the accusations in 2000.
6. In August 2014, the Applicant was approached by the same group of PMLN people. They asked him to quit PPP to join PMLN. The Applicant refused. He was beaten up by those people. The Applicant did not report the matter to the police because PMLN was the ruling party. He believed the police were in favour of PMLN and it would be useless to seek help from the authorities.
7. Being in fear, the Applicant left home to live with his friend. However, he returned home secretly at times to see his children.
8. In November 2015, the Applicant was invited by the PPP leaders to go back to his village to help in the election campaign. One evening, he was approached by the same group of PMLN people. They again forced him to join them. They threatened to kill him if he refused. The Applicant was assaulted and got injured. He subsequently fled to stay with his friend and only returned home occasionally.
9. The Applicant feared he would be caught and killed by his enemies. On 10 March 2016, he left Pakistan for China. Several days later, he entered Hong Kong illegally. He subsequently sought non-refoulement protection.
10. In the ensuing two‑tier screening process, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively rejected the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture[1], (ii) risk of persecution[2], (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
11. On 29 December 2017, the Applicant applied for leave for judicial review. The Applicant named the Board and the Director as respondents. That application was heard by me as HCAL1158/2017 on 7 June 2018. I refused to grant him leave to apply for judicial review. The order was issued on 30 July 2018.
12. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the Applicant had 14 days to lodge an appeal. The appeal period expired on 13 August 2018. The Applicant failed to do so. He only applied for leave to appeal out of time by a summons taken out on 11 September 2018.
Reasons for being late
13. In his affirmation dated 11 September 2018, the Applicant said he was illiterate and did not understand the content of the court order. Nobody read the documents to him.
14. The Applicant claimed he still did not understand the order now. He said he did not file an appeal in time because he was not aware of the time limit.
Grounds of intended appeal
15. The Applicant had not produced any draft notice of appeal. There were no appeal grounds stated in his affirmation.
Hearing
16. The hearing took place on 21 September 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
17. The Applicant said he got the court order dated 30 July 2018 somewhat late. He was illiterate. He could only find a boy to read the documents to him ten days after he had received them. Then he sought further assistance and finally found a friend who could help him to prepare the documents for the current application. It was a different friend from the one who had helped him to prepare Form 86 and his affirmation in the earlier application for leave for judicial review in December 2017.
18. The Applicant was asked to state his grounds of appeal to show he had a reasonable prospect of success of his intended appeal. I stood the matter down for him to organize himself. The Applicant was told he could ask the interpreter to write down the grounds of appeal for him.
19. When the hearing was resumed, the Applicant had merely asked the interpreter to write down for him to the effect that the court should consider his situation and give him more time to get some advice as to ‘what could be done further’ and ‘to get advice from a lawyer to know whether there is any solution to my case or not’. The Applicant stated no grounds of appeal there. He could not give any in court either.
20. I refused to adjourn the matter because the Applicant failed to offer any good reason for adjournment. He had already sought assistance from someone, who he called as friend. That ‘friend’ apparently was acquainted with the law as he had helped the Applicant to prepare an affirmation dated 11 September 2018 in proper form for the current application. The Applicant could not persuade the court that an adjournment would serve any useful purpose.
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.[5]
22. On 30 July 2018, I refused to grant leave to the Applicant to apply for judicial review. The Applicant failed to file an appeal within 14 days. He said he received the CALL-1 form and court order somewhat late. He said he was illiterate and had to find someone to help him to understand the documents. On 11 September 2018, the Applicant filed a summons to apply for leave to appeal out of time. He was late for about 4 weeks.
23. The Applicant did not say clearly when he actually received the CALL-1 form and court order dated 30 July 2018. Even if I were to accept he received the documents late and had reasons for his delay which was not a long one, the Applicant still failed to show he had a reasonable prospect of success which is a crucial assessment in an application for leave to appeal out of time.[6] He could provide no grounds of appeal at all.
24. 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.
25. 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.”[7]
26. The Applicant failed to state any viable ground of his intended appeal for the Court of Appeal to consider that my order dated 30 July 2018 should be reversed.
Conclusion
27. 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 11 September 2018 is therefore dismissed.
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(Josiah Lam) |
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Deputy High Court Judge
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The Applicant appeared in person.
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] See Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Suk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016).
[6] Re AKBAR MD FAISHAL [2018] HKCA 566, para 13.
[7] [2018] HKCA 570, para 14(2).
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