RE AZIZ NASIR

CAMP 199/2018

[2019] HKCA 578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 199OF 2018

(ON AN INTENDED APPEAL FROM HCAL 1030/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  By a decision given on 14 September 2018, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant an extension of time for the applicant to apply for judicial review.  The intended judicial review was against two decisions of the Torture Claims Appeal Board/adjudicator of Non-refoulement Claims Petition Office (“the Board”) dated 28 February 2017 and 20 November 2017 respectively.

2.  On 29 October 2018, the Judge refused to grant the applicant leave to appeal against his decision.

3.  By a summons dated 21 December 2018, the applicant renewed his application before this Court for leave to appeal out of time.

Background

4.  The applicant is a national of Pakistan.  According to him, he left Pakistan for Mainland China (via Bangkok) on 31 December 2012.  Before entering Hong Kong illegally on 27 April 2014, he had been staying in the Mainland for about 16 months.  He was arrested by the police on 28 May 2014 and raised his claim for non-refoulement protection on 6 August 2015.

5.  The applicant’s claim was based on the alleged fear that, if refouled, he would be harmed or killed by the family members of his girlfriend because of their love affair.  The factual background was summarized in [2] – [5] of the Form CALL-1, [2018] HKCFI 2032.

6.  By two notices of decision dated 24 July 2015 and 3 January 2017, the Director of Immigration rejected the applicant’s non-refoulement claim on all applicable grounds.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]; and the latter covered the BOR 2 risk[4].

7.  The applicant lodged an appeal/petition to the Board.  A hearing was held on 7 September 2016.  After hearing the applicant, the Board found that the dispute between the applicant and his girlfriend’s family was a private dispute and did not amount to persecution.  The Board also found no evidence that the applicant had suffered any serious harm or injury.  The Board concluded that the applicant failed to establish a case of torture.  The Board dismissed the applicant’s appeal/petition on 28 February 2017 (“the Board’s First Decision”). 

8.  The Board further considered the applicant’s claim on the BOR 2 in light of the Director’s further decision.  By a further decision dated 20 November 2017, the Board upheld the Director’s decision in that respect (“the Board’s Second Decision”).

The Judge’s decisions

9.  On 7 December 2017, the applicant applied for leave to apply for judicial review against both decisions of the Board.  He also filed an affirmation in support of the application, advancing 8 grounds for seeking reliefs.  The grounds are set out in [12] of the Form CALL-1. The applicant also complained that the hearing bundle was only given to him just few days before the hearing before the Board, giving him insufficient time to prepare for the hearing.

10.  Upon the applicant’s request, an oral hearing was held on 10 August 2018.  The Judge noted that the time for applying leave to apply for judicial review against the Board’s First Decision had already expired for more than 6 months. 

11.  The Judge refused to extend the time for the applicant to apply for judicial review against the Board’s First Decision.  The Judge took the view that the length of the delay was excessive and the reason for the delay was unacceptable.  It was also held that the proposed grounds for the intended judicial review had no merits, and that leave to apply for judicial review should be refused accordingly.  The Judge’s reasons for rejecting leave were set out at [15] – [20] of the Form CALL-1.

12.  By a summons dated 26 September 2018, the applicant sought leave from the Court of First Instance to appeal against the Judge’s decision.  On 29 October 2018, the Judge refused to grant leave to appeal on the basis that there was no prospect of success in the intended appeal (see [2018] HKCFI 2382; “the Leave Decision”).

Application for leave to appeal out of time

13.  As mentioned earlier, the applicant renewed before this Court his application for leave to appeal out of time.  It was stated in the affirmation that the grounds for the application were as follows:

“ (a) The Honourable Deputy High Court Judge Bruno Chan was wrong in law in holding that there was no state acquiescence or involvement.

(b) The Honourable Deputy High Court Judge Bruno Chan failed to provide detailed reason in support of her (sic) decision.”

14.  In his skeleton argument lodged on 14 January 2019, the applicant quoted some passages from ST v Director of Immigration (sic) [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.  The applicant also referred to The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 for the proposition that the decision maker has a “duty to act fairly.”

Legal principles

15.  By Order 59, Rule 2B(3) of the Rules of the High Court (Cap 4A), an applicant has 14 days from the date of the refusal of leave to appeal to make application to this Court for a further application.  Accordingly, so far as the renewed leave application relating to the Board’s First Decision is concerned, the time limit to do so expired on 12 November 2018. There is a delay of more than 5 weeks in the applicant’s renewed application for leave to appeal.

16.  So far as the Judge’s decision refusing leave to apply for judicial review against the Board’s Second Decision is concerned, the 28-day time limit for filing a notice of appeal expired on 26 November 2018: see Order 59, Rule 4(1)(c) of the Rules of the High Court.  There is a delay of more than 3 weeks in the bringing of an appeal relating to the Board’s Second Decision.

17.  It is well-established that, in the consideration of the application for leave to appeal out of time, the court will take into account the following factors in the exercise of its discretion (see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at 107; Re Monjur Hossain [2018] HKCA 476; Re Saqlain Muhammad [2018] HKCA 346):

(a)   The length of the delay;

(b)   The reasons for the delay;

(c)   The chance of success of the intended appeal; and

(d)   The prejudice to the other party.

18.  In Nupur Mst v Director of Immigration [2018] HKCA 524 at [14], and Re Mizan Sikder [2019] HKCA 20 at [13], this Court has set out the general principles that have been adopted in dealing with appeals or intended appeals in non-refoulement cases. Such general principles must be borne in mind in assessing the prospect of success of the intended appeal.

Discussion

19.  In our view, the length of the delay in the present case is substantial.  The applicant did not provide any explanation for the delay.  In such circumstances, there is no basis for us to accept that there was any reasonable excuse for the delay.

20.  Therefore, the applicant must satisfy that the intended appeal has real prospect of success before extension of time will be granted: see Re Ansar Muhammad [2018] HKCA 227.

21.  Far from an appeal with real prospect of success, we are of the view that the intended appeal of the applicant has no prospect of success.  Given the facts of this case, there is no basis for the applicant to rely on the concept of state acquiescence or involvement, whether active or passive, in the present case: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611 at [16] – [19].

22.  As it is apparent from the Form CALL-1 and the Leave Decision, there is no basis for the applicant to complain that no detailed reasons were given by the Judge.

23.  The skeleton submissions in support of this application is a mere regurgitation of the written submissions lodged before the Judge for leave to appeal.  As rightly pointed out by the Judge at [3] of the Leave Decision, these submissions are general assertions without particulars.  They cannot be of any avail to the applicant in this application.   

24.  The grounds for the judicial review as advanced before the Judge in the present case (which are similar to those advanced on many other occasions that we have come across) do not constitute valid grounds for challenging the Board’s decision, see Re Mizan Sikder [2019] HKCA 20 at [17]. 

25.  The summons of 21 December 2018 is dismissed accordingly.