RE ABBAS TASAWAR

CAMP 81/2020

[2021] HKCA 21

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 81 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1597 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.  After a hearing on 13 February 2019 (“the JR hearing”), on 2 July 2019, DHCJ K.W. Lung (“the Judge”) refused to give the applicant leave to apply for judicial review proceedings concerning his non-refoulement claims (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 16 July 2019.

2.  The applicant was late in lodging an appeal by 3 days. He filed a summons in the Court of First Instance on 19 July 2019 for extension of time to appeal.  That summons was dismissed by the Judge on 12 June 2020. 

3.  On 3 July 2020, the applicant filed his summons in CAMP 81/2020 to apply to this court for an extension of time to appeal the JR Decision.

4.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing. The applicant filed his written submissions on 14 August 2020 pursuant to the directions made by the Registrar of Civil Appeals.  

Background

5.  The brief background is as follows.  The applicant is a national of Pakistan.  He is a Sunni Muslim which was the majority sect in his village.  He was a carpenter.  He did not allege that he was active in either political or religious matters.  However, he claimed that in around November 2010, he was approached by a group of about 10 people (including 3 Shia Muslim persons) requesting him to join their rallies.  The 3 persons belonged to the political party PMLN and worked for B and G, who he claimed were members of the national and provincial assembly respectively.  He refused their request and was attacked by the group.  He did not report this matter to the police as he was not injured.  Around one and a half weeks later, he was attacked by the 3 Shia persons again and was injured.  He reported the attack to the police but the police did not take any action.  He claimed that later, he received verbal death threats through his friend.  He went to stay with his uncle in Islamabad but claimed he still received threatening calls from unknown people warning him that he would be tracked down.  He then left Pakistan.  At various stages he travelled to China and Malaysia, but returned to Pakistan twice, claiming to attempt negotiation with the 3 Shia persons.  He came to Hong Kong on 29 December 2012.  On 26 June 2013, he was arrested by the Hong Kong police.

6.  The applicant’s allegations in support of his claim have been set out in detail in the Decision of the Torture Claims Appeal Board of 2 August 2018 (“TCAB’s Decision”) and in gist in the JR Decision. 

7.  The applicant gave evidence before the TCAB which found his claims were not credible.  The TCAB found that as the Sunnis were, on the applicant’s own case, in the majority in the applicant’s home village, it was incredible that the 3 Shia persons would threaten and attack him, whom they barely knew, for no good reason [73].  Further, his allegation regarding B and G’s membership of their respective assemblies was incorrect in point of time [72].  Also, the fact that he returned safely to Pakistan twice later after travelling overseas was inconsistent with his allegation of his fear of the 3 Shia persons [74-75].

8.  His claim was accordingly dismissed by the TCAB.

Application for leave to start judicial review

9.  On 10 August 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the TCAB’s Decision.  The grounds put forward by the applicant were summarized by the Judge in [10] of the JR Decision:

“(1) the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(2) the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3) the applicant was confused at the appeal hearing; and

(4) the Board had relied on the source of news not officially recognized or hearsay or outdated.”

The JR Decision

10.  As mentioned earlier, the Judge refused leave for reasons set out in [11] - [15] of the Form CALL-1 ([2019] HKCFI 1658):

11.  The applicant appeared before me. He confirmed that the Director’s Decision was explained to him by his lawyer. His friend had explained to him the hearing bundle before the appeal hearing and the Board’s decision. He considered he had had a fair hearing before the Adjudicator. He had no complaint against the Adjudicator. He made this application because his problem in Pakistan had not been solved and he could not go back to Pakistan.

12.  Grounds (1), (2) and (3) are inconsistent with what he said in court. They fail.

13.  Ground (4) is only his opinion without any evidence in support of it. It fails.

14.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

15.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review. Accordingly, I dismiss his application.”

Proposed Grounds of Appeal

11.  The applicant’s proposed grounds for appealing against the JR Decision are that the Judge was wrong to reject his grounds (1), (2) and (3) because he (the applicant) had a hearing problem and what the Judge recorded in [11] of the JR Decision was wrong. According to the applicant, “the Judge had misinterpreted my oral submission and/or I was not able to hear the question properly due to my hearing problem”.  As for ground (4), he submitted that the Judge “failed to make sufficient enquiry before finalizing the judgment”.  

Legal Principles

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the absence of prejudice does not mean that an extension should be granted).

Discussion

13.  As for (1), the applicant was late by only 3 days between the JR Decision and the summons filed in the Court of First Instance.  This could be regarded as insubstantial.  However, it should be noted that after the Judge refused an extension of time on 12 June 2020, the applicant did not apply to this court for extension for some 3 weeks.     

14.  As for (2), the reasons for the delay, the applicant did not give any satisfactory reasons for the time taken to apply to this court.    

15.  However, the most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  There are no particulars of his allegations that the Judge had misinterpreted his oral submissions at the JR hearing.  He has not suggested that the Judge had a hearing problem.  As for the reliance on the applicant’s own hearing problem, it is not material in the present circumstances, because even if it is assumed that he had not made the statements recorded by the Judge in [11] of the JR Decision, there is still nothing in his grounds of appeal against the TCAB Decision, and the Judge would still have been entitled to refuse leave to start judicial review proceedings.    

16.  First, the applicant had given no particulars of the date when he received the hearing bundle and how much more time he would have needed. Before the TCAB, the applicant made no complaint of lack of time and did not ask for an adjournment of the hearing.  On the contrary, as recorded at [38] of the TCAB Decision, the applicant had confirmed the truth and correctness of the evidence contained in the bundle.  Secondly, an interpreter was available at the hearing before the TCAB, which had made the effort to establish that he could hear sufficiently well, as recorded at [41] of the TCAB Decision.  The applicant has not suggested that this was not the case.  Thirdly, the applicant has not particularised what he was confused about at the hearing before the TCAB, nor fourthly, has he specified or established what it was that the TCAB had relied upon which was inaccurate.                 

17.  The TCAB had refused his claims on factual grounds which it was entitled to do on the evidence.  It is well-established that the application for leave to start judicial review proceedings is not a re-hearing by the judge of the TCAB proceedings, and he has not specified what the Judge had failed to make sufficient inquiries about.  The function of this court is to consider any alleged errors on the part of the judge.  We do not see any in this case.    

18.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 3 July 2020.

19.  Since the present application is totally without merit, we further make an order under Order 59 r. 2A(8) RHC that the applicant may not request our determination to be reconsidered at an oral hearing.