RE UMAR SHAHZAD

CAMP 93/2020

[2021] HKCA 49

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 93 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 152 OF 2018)

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J U D G M E N T

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

1.  This is an application to extend time to appeal a decision of the Court of First Instance (“CFI”) refusing leave to commence judicial review proceedings.

Director of Immigration’s Decision

2.  On 20 May 2016 and 24 February 2017, the Director of Immigration (“the Director”) rejected the applicant’s claims for non-refoulement having examined his claims on the risks of torture, violation of Bill of Rights Articles 2 and 3, and persecution risk (“the Director’s Decision”). 

Applicant’s appeal/petition to TCAB/adjudicator

3.  The applicant filed an appeal/petition to appeal the Director’s Decision.  Essentially the applicant’s case is as follows.  He is a Pakistani national.  His girlfriend came from another caste.  He had a sexual relationship with her and made her pregnant.  Her family did not approve of the relationship.  Around the end of 2012, his girlfriend warned him to stay away from home which he did for a couple of days.  On his return, he was assaulted by her brothers for 1-2 minutes with their bare hands.  He did not report the matter to the police as he felt ashamed by his actions.  He then left his home village and stayed in various places in Pakistan for various periods of time totalling 18 months, but after staying in Rawalpindi, he was “very bored” and returned to his home village where he stayed for a year without encountering his girlfriend’s family.  Nevertheless, he departed Pakistan and came to Hong Kong in July 2014.  Having made a claim for non-refoulement, he withdrew the claim in 2015, alleging his father had negotiated a settlement with the girlfriend’s family. He did not however return to Pakistan as he was told the settlement was just to lure him back.  He claimed his father was then attacked by the girlfriend’s family.  He (the father) was hospitalized for 15 days but died later at home after his condition deteriorated.  As for the girlfriend, the applicant claimed she was hit by her family and the baby died, but did not say how he was aware of that.  Further, he claimed there has been a settlement of the attack on his father, and he has not heard from his brother whether police are investigating it.  It would be noted that at no stage did he claim any political activities. This is relevant when we come to discuss later in this judgment his written submissions to this court.    

TCAB Decision

4.1  On 24 July 2017, the Torture Claims Appeal Board (“TCAB”) sent a notice of hearing to the applicant at the address he provided in the appeal/petition against the Director’s Decision.  The notice was not returned in the post.  However, when the TCAB held the hearing on 14 September 2017, the applicant failed to attend.  On the same day, the TCAB sent a notice to the applicant stating that if he failed to provide a satisfactory explanation for his absence within 7 days, the TCAB would proceed to determine the appeal in his absence.  The applicant did not respond.

4.2  On 31 October 2017, the TCAB member (Mr Bruce Henry) delivered his Decision.  Essentially, the TCAB rejected the applicant’s allegation that his father had been assaulted by the girlfriend’s family and was hospitalized and later died from his injuries, as there was no documentary evidence from the hospital or the police [28] in support of these allegations.  Further, the TCAB did not accept his claim that the police were not prepared to investigate the attack on his father, as on his own case, his family had chosen not to ask the police to do so [29].  The TCAB also noted the fact that he had spent a year back in his home village without incident, having returned simply because he was bored in Rawalpindi [33].  Accordingly, the applicant’s appeal/petition was rejected.      

Application for leave to judicially review TCAB Decision

5.  On 2 February 2018, the applicant filed a Form 86 in the CFI in HCAL152/2018 for leave to commence judicial review. 

6.  It would appear that the TCAB had sent him a Decision for another person who had exactly the same name as the applicant but whose case had been determined by another TCAB member (Mr Wesley Wong).    

CFI’s 2019 Decision

7.1  The matter came before DHCJ Josiah Lam (“Judge Lam”) first on 15 June 2018. At a second hearing on 12 September 2018, Judge Lam alerted the applicant to the fact that the wrong TCAB Decision (Mr Wong’s Decision) had been sent to him and provided him with Mr Henry’s Decision.  The judge then adjourned the hearing for 16 days to enable the applicant to submit any revised grounds of application. 

7.2  On 27 September 2018, the applicant filed an affirmation in support of his JR application in which alleged that he had not received the Director’s letter inviting him to submit any additional evidence for a claim based on the BOR2 risk, nor the Director’s decision in respect of that claim, nor the TCAB’s notice of hearing.  He alleged he had informed the Board of his new address, but he did not say when he did so.   

7.3  The following day, 28 September 2018, the applicant appeared again before Judge Lam. It transpired that he had moved twice after filing his appeal/petition to appeal the Director’s Decision, but he did not inform the Immigration Department of his new address until “the end of 2017” [CFI 2019 Decision as defined below, 42], in other words, after the proceedings before the TCAB had concluded.   

8.  Judge Lam’s observations on the application for judicial review were set out in the document called “CALL-1 Form” issued on 3 September 2019 (“the CFI’s 2019 Decision”).  In this Decision, the judge found the applicant was 2 days late in filing his Form 86 [53].  He rejected the applicant’s reason for the delay (that he did not receive the TCAB Decision until one week before 2 February 2018) as it was due to his own fault in not providing an updated address [41, 55]. 

9.  The judge also noted that the applicant had in any event failed to show that he had any relevant and worthwhile representation to make, had he appeared before the TCAB [42].  The TCAB was entitled to make the findings of fact on the evidence [44].  The applicant’s ground of lack of legal representation had been rejected by the Court of Appeal [46] and he had exaggerated his language problem as he had a friend to help him prepare his court documents [49].   

10.  Finally, the judge directed the applicant that if he wished to appeal, he would have to seek leave from the CFI within 14 days.

Applicant’s summons in Court of First Instance 

11.  On 17 September 2019, the applicant filed a summons in the CFI.

12.  It stated that he wanted “leave order judicial review of my case again and give me more time for leave.  Need more consideration and time.  Extension of time”. His affirmation only attached court documents. 

CFI’s 2020 Decision  

13.  The summons was heard by DHCJ K W Lung (“Judge Lung”) on 12 November 2019. The applicant did not appear and no explanation was given for his absence.  In a Decision given on 2 July 2020 (“the CFI’s 2020 Decision”), the judge held that there was no prospect of success.  Accordingly, the summons was dismissed.

Applicant’s summons in Court of Appeal     

14.  On 10 July 2020, the applicant filed a summons in this court in CAMP93/2020 to appeal from the CFI’s 2020 Decision.  In his affirmation in support, he said he did not agree with the CFI’s 2020 Decision.   

15.  On 19 August 2020, the applicant filed handwritten submissions in which he claimed to have been “related with politics”, who could influence the young persons in his locality.  He said opposition party leaders made an offer to him to quit his job, which he refused, and that they took the chance to kill him, bribing police and other government agencies.  None of this bears any semblance to his case as previously presented, and there is no evidence in support at all.

Discussion

Leave not required for CFI’s 2019 Decision         

16.  In the CFI’s 2019 Decision, Judge Lam directed that 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 the CFI by way of summons for leave to appeal.

17.  In H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22 (“H and AH”), decided on 14 July 2020 (after the CFI’s 2019 and 2020 Decisions), the Court of Final Appeal held that an order refusing an extension of time and dismissing an application for leave to issue judicial review (like the one made by Judge Lam in the CFI’s 2019 Decision) was appealable as of right [H and AH para.41].  Accordingly, with the benefit of hindsight, it was incorrect for the judge to have directed that the applicant had to apply for leave to appeal in the 2019 Decision, and for Judge Lung to refuse leave in the 2020 Decision.

True nature of summons in CAMP84/2020

18.  In other words, the applicant could have appealed the CFI’s 2019 Decision as of right, but he should have filed his appeal straight to the Court of Appeal within 14 days thereafter [Rules of High Court, Order 53 rule 3(4)].  He did not do so.  Accordingly, this court should treat the summons filed in this court in CAMP93/2020 as an application for extension of time to appeal the CFI’s 2019 Decision.  Pursuant to Order 59 rule 14A(1) RHC, this court considers it appropriate to decide this interlocutory application on paper.

Principles governing application for extension of time to appeal

19.  The principles governing the exercise of the court’s discretion to extend time to appeal are well-established.  The court would consider: (1) the length of the delay; (2) the reasons for delay; (3) the merits of the intended appeal; and (4) any prejudice to the intended respondent (although the lack of prejudice does not mean that time should be extended).

(1)   Period of delay

20.  As for (1), as discussed above, the applicant should have filed his Notice of Appeal to this court within 14 days of the CFI’s 2019 Decision (i.e. by 17 September 2019).  He filed his summons in this court on 10 July 2020.  The delay is nearly 10 months.

(2)   Reasons for delay

21.  As for (2), it is noted of course that the applicant had first applied for leave to appeal as a result of the judge’s direction. He did that on 17 September 2019 which would have been within time had he filed a notice of appeal in this court.  His summons in this court was also filed within a fairly short period after the CFI’s 2020 Decision.  Accordingly, there was a good reason for his delay.     

(3)   Merits of intended appeal

22.  As for (3) however, there are clearly no merits in the intended appeal.  The TCAB had thoroughly analysed the applicant’s claim and was entitled to make the factual findings set out in its Decision.  It may not be correct for Judge Lam to consider the applicant had delayed in making the application for leave to start judicial review proceedings when the TCAB Decision had not been provided to him until 12 September 2018, but the judge was clearly right in finding in the 2019 Decision that there were no valid grounds for judicial review.  It is well-established that an application for leave to issue judicial review is not an opportunity for a re-hearing of the claim and as Judge Lam noted, in any event the applicant was unable to add anything to the materials before the TCAB.  The applicant’s written submissions to this court presenting entirely new and unsupported allegations merely served to undermine his case.     

Order

23.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, the applicant’s summons filed on 10 July 2020 is dismissed.  Since the present application is totally without merit, it is ordered under Order 59 r. 2A(8) RHC that the applicant may not request this court’s determination to be reconsidered at an oral hearing.