RE YOUNAS SHIRAZ

CAMP 26/2019

[2019] HKCA 791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 26 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1101/2017)

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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 Campbell-Moffat J given on 7 September 2018 refusing the applicantleave 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 dated 12 September 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 26 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 13 January 2016 illegally.  He surrendered to the authorities on 20 July 2016.  He lodged a non-refoulement claim on 2 May 2017. 

3.  The applicant’s claim was based on threats from his relatives arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 26 May 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  The Board considered the criteria in ST v Betty Kwan [2014] 4 HKLRD 277 and decided not to hold a hearing.  The Board dismissed the appeal on 12 September 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [24], [34], [38] – [40] of the Board’s Decision, the Board found that the applicant is unlikely to suffer from any of the proscribed harm upon his return.  The Board was also satisfied at [31] – [32] that state protection would be available for the applicant and at [45] that internal relocation would be viable.

The judge’s decision

7.  On 18 December 2017, the applicant filed a Form 86 dated 7 December 2017 which contained no ground for seeking relief. 

8.  In the affirmation in support of the leave application dated 18 December 2017, the applicant stated that:

“I want to judicial review the refusal decision of [the Board]. This decision is unfair and unreasonable”

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  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 [13] of the CALL-1 Form:

“12. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. This was a very simple matter based upon a private inter-familial dispute which is currently in negotiation on an apparently amicable basis. Despite its apparent lack of merit, the Director and the Adjudicator considered the claim with reference to all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There has been no suggestion that the Applicant had not been properly heard or given the opportunity to fully explain his case. Nor has there been any suggestion that he had other material which he wished to put before the board. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13.   In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

11.  According to the court’s record, the CALL-1 Form was served on the applicant on 7 September 2018 to the address supplied by the applicant (ie at the Castle Peak Bay Immigration Centre).

Application for extension of time to appeal and grounds for appeal

12.  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 5 October 2018, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 30 January 2019.

13.  By a summons dated 11 February 2019, the applicant renewed his application for an extension of time to appeal before this court.  He stated that:

“Application for extension of time for lodging against the order that on 30-Jan-2019. I am seeking for time extension for my application. I am not fully aware of court proceedings at all. Last time could not get ordered on time by the respected court, which the court issued on dated 7 September 2018. Seeking time extension for my application.”

14.  In the affirmation dated 11 February 2019, the applicant stated that:

“Affirmation for appeal against the order that dismissed summons for the summons for extension of time to appeal. Herein I am seeking for further application for time extension for my application to appeal against the order issued on 30-Jan-2019”

15.  On 13 February 2019, the applicant lodged a written submission.  He submitted that it was unfair for the judge to dismiss his judicial review application without an oral hearing.  Because of his education level and the requirement of high standard of fairness, he should have been provided with language and legal assistance.  He explained that he was late in filing his appeal because he did not receive the order.  He was still in CIC (which we take to mean Castle Peak Bay Immigration Centre) when applying for judicial review so he did not have an address to provide to the court.  He wanted to stay in Hong Kong until his problems in Pakistan are resolved.

16.  On 5 March 2019, the applicant lodged a second written submission without leave. The Registrar of Civil Appeals directed on 11 March 2019 that the submissions lodged on 5 March 2019 shall not be considered by the Court of Appeal.

Discussion

17.  The applicant claimed that he was late in filing the appeal because he did not receive the CALL-1 Form.  This is apparently due to the failure by the applicant to duly supply the latest address to the court (as explained by the judge in the judgment dated 30 January 2019 at [5]).  The applicant failed to give any good reason for the delay in bringing the appeal.  Nevertheless, we would go on to consider the merit of the intended appeal.

18.  The applicant complained that he was not given an oral hearing for his judicial review application.  He submitted that he did not request an oral hearing because he was unaware of the need to request for one. 

19.  The applicant did not explain how the absence of an oral hearing had caused him any prejudice.  We also note that the applicant was given an oral hearing for his leave to appeal application before the judge.  In any event, having failed to request an oral hearing, the applicant cannot now complain of any unfairness in the failure to hold one.

20.  As for the other grounds of appeal, we observe that none of them was raised as a ground for judicial review before the court below.  It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)). 

21.  For these reasons, we do not see any prospect of success in the intended appeal. We will not grant extension of time for a hopeless appeal.  The summons of 11 February 2019 is dismissed accordingly.

22.  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.