RE GULZAR MUHAMMAD

CAMP156/2020

[2021] HKCA 619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 156 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 220/2017)

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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 Yau J given on 22 January 2018 refusing leave to the applicant 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 5 May 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 27 May 2016 and 30 March 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He allegedly entered Hong Kong on 27 October 2009 illegally and was arrested by the police on the same day.   He lodged a torture claim on 29 October 2009. 

3.  The applicant’s claim was based on threats from a man known as Ali who had a dispute with the applicant’s cousin and killed his cousin.  The details of the applicant’s claim have been summarised by the judge at [1] to [8] and [10] of the CALL-1 Form.

4.  By a Notice of Decision dated 27 May 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 30 March 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 27 April 2017, the Board dismissed the appeal on 5 May 2017 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.  At [36] of the Board’s Decision, the Board found that the applicant’s case was not credible and at [37] the Board held that the applicant has fabricated certain aspects of his claim.

The judge’s decision

7.  The applicant filed a Form 86 on 22 May 2017 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 22 May 2017, the applicant advanced the following grounds for judicial review:

(1)  lack of legal representation in the Board’s Decision and the Further Decision of the Director;

(2)  lack of language assistance in his claim for BOR2 risk; and

(3)  the Board wrongly exercised his case management power by giving undue weight to his inability to distinguish legal terms and wrongly dismissed his appeal for lack of credibility.

9.  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 [12] to [17] of the CALL-1 Form:

“12. I have considered the evidence and decisions of the Director of Immigration and the Appeal Board. They have looked into all the available grounds of non-refoulement claim of the applicant and I do not find any error in law or procedure.

13. The applicant submits in this application that he was not given any legal representation throughout his appeal/petition to the Appeal Board. While it is indeed the case that he was not legally represented in the appeal he was assisted by the DLS when his claim was being considered by the Immigration Department. Despite having no such assistance in the appeal/petition the Appeal Board had given full assistance to the applicant and had considered all aspects of his appeal/petition. The contention of the applicant that there was a clear violation of the principle of ‘high standard of fairness’ has no merits.

14. The applicant complains that no language assistance was provided to him in his appeal/petition and when he was asked in a letter by the Immigration Department to provide additional facts or information to the department for consideration. He alleges that the letter was too technical for a layman like him whose first language is not English to understand. It must be pointed out that the letter of the Immigration Department though in English is not technical at all. It should not be difficult for the applicant to seek help to have the letter explained to him. The fact that the applicant is able to make a proper affirmation in English for this application serves as an example.

15. More importantly, despite no language assistance having been provided to the applicant his non-refoulement claim had been fully and fairly considered by the Immigration Department and the Appeal Board.

16. The applicant also relies on the ground that the Appeal Board has no reasonable basis to reject his credibility. This concerns the finding of facts by the Appeal Board and this court does not see any justification to interfere with it.

17. There are no reasonably arguable grounds to support the intended judicial review and there is no realistic prospect of success. Leave to apply for judicial review is refused.”

Application for extension of time for leave to appeal

10.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 25 October 2018, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 15 March 2019.

11.  By a summons dated 9 September 2020, the applicant renewed his application for an extension of time to appeal before this court.  In the affirmation in support filed on the same day the applicant deposed that:

“…I did not receive any letter from to the court unless I send to court request letter for my application on 21 August 2020.”

12.  In his skeleton submissions dated 20 November 2020, the applicant submitted that:

(1)  shortly after the CALL-1 Form was mailed to him, he pleaded guilty to an offence and was sentenced to a term of imprisonment in February 2018.  He did not have time to seek help for understanding the content of the English judgment;

(2)  the court and the authorities were negligent and failed to perform a standard duty of care specific to a non-refoulement claimant.  He did not understand English or court procedure. He was discriminated and was put at a disadvantage because of the above;

(3)  the authorities ignored his handicap and discriminated against him.  The authorities sought to quickly dispose of his case;

(4)  the judge failed to appreciate the significance of his claim and did not take into account his vulnerability and disadvantage;

(5)  a copy of his wife’s medical reports is attached to the submission.  The applicant claimed that his wife is “[too] much worried about [him]”.

Discussion

13.  Notwithstanding the applicant’s request for an oral hearing, 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.

14.  We have considered the explanation for his delay in bringing the intended appeal in the affirmation dated 9 September 2020 and his explanation to the judge (summarized by the judge at [5] – [10] of the decision dated 15 March 2019).  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  The events alleged by the applicant do not show that the applicant experienced any serious difficulty in preparing for the intended appeal or that he has used reasonable effort in prosecuting the appeal.

15.  In the circumstances, the applicant did not have any reasonable explanation for his delay in bringing the intended appeal and the court will only grant extension of time if his prospect has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re MA [2019] HKCA 1020.

16.  The applicant claimed that he lacked language assistance and he was discriminated against as a result.   We note that the applicant was able to provide Court documents in English.  He identified the alleged errors committed by the judge and the Board and made submissions on those alleged errors.  It is clear that either he is reasonably proficient in English or has access to language assistance.  The judge has in fact found that the applicant has a reasonable command of English (see [12] of the judgment dated 15 March 2019).  In any event, the applicant failed to identify any real prejudice from the alleged discrimination or lack of language assistance.

17.  The applicant advanced a number of grounds based on the alleged errors on the part of the Director and the Board.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  These grounds are therefore not viable grounds of appeal.

18.  The applicant also failed to supply sufficient particulars for the grounds he relied on, for example he did not identify the vulnerability or disadvantage said to have been ignored by the judge.  In our view, none of those grounds is reasonably arguable.

19.  As for the applicant’s claim that his wife is worried about him, this is not by itself a valid ground of appeal or a ground for seeking non-refoulement protection.

20.  We therefore do not see any prospect of success in the intended appeal.  We will not grant an extension of time for a hopeless appeal.  The summons of 9 September 2020 is dismissed accordingly.

21.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.