RE NOOR ALAM

CAMP 87/2020

[2020] HKCA 1001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 87 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO.580 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

Introduction

1.  On 9 December 2019, Deputy High Court Judge Bruno Chan (“the Judge”) refused to extend the time for the applicant to apply for judicial review.[1] The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) given on 7 July 2017 refusing to extend time for him to file a notice of appeal against the decision of the Director of Immigration (“the Director”) dated 3 October 2016 refusing to re-open his non-refoulement claim.

2.  On 29 June 2020, the Judge refused to give leave to the applicant to appeal his decision to the Court of Appeal.[2]  By summons filed on 7 July 2020, the applicant applied to this Court for leave to appeal against the decision of 29 June 2020.  The Registrar of Civil Appeals directed on 29 July 2020 that the summons be treated as an application for extension of time to appeal against the Judge’s 9 December 2019 decision (see also [13] and [14] below).

3.  The applicant had filed an affirmation and also lodged a written submission in support of his application.

4.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  In his written submission, the applicant asked that his summons be heard in an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.  We have therefore proceeded to process this application on the paper.

Background

5.  The applicant is a national of Pakistan.  On 15 August 2011, he arrived in Hong Kong but was refused permission to land.  On the same day, he lodged a torture claim based on fear of being killed by a person called Rehmat Gul.  The applicant claimed that he and Rehmat’s unmarried sister, Bibi, were friends and they had been seen talking with each other in the public.  This enraged Rehmat, who told the applicant he had killed his sister for her disgraceful conduct and would kill him too.  The applicant made a report to the police, but they could not locate Rehmat.  The police advised the applicant to leave the country for his own safety.  On 2 May 2012, the Director rejected the torture claim. 

6.  On 13 March 2014, the applicant raised a non-refoulement protection claim.  By letter dated 15 April 2014, the Director informed the applicant that his claim would be dealt with under the Unified Screening Mechanism on all applicable grounds except the torture risk ground.  The letter also stated that a briefing session would be arranged for the applicant to explain the screening process and to provide him with the non-refoulement form and information on legal assistance. 

The Director’s decision

7.  On 14 March 2016, the applicant informed the Director in writing on 14 March 2016 that he withdrew his claim and wanted to return to Pakistan as it was safe for him to do so.  By then, the Director had yet to arrange the briefing session for the applicant, and the applicant had not yet filed his non-refoulement claim form.     

8.  Subsequently on 8 August 2016, the applicant wrote to the Director requesting to re-open his claim on the ground that he had some problems in Pakistan.  By letter dated 25 August 2016, the Director requested the applicant to provide by 8 September 2016 sufficient information and evidence for consideration of his request to re-open his claim.  The applicant did not respond to the Director’s request. 

9.  By a notice of decision dated 3 October 2016, the Director refused to re-open the applicant’s claim.  The Director was of the view that despite being given ample opportunities and time, the applicant had failed to provide sufficient evidence to show that since the withdrawal of the claim, there had been a change of circumstances that could not reasonably had been foreseen when he gave notice to withdraw, and when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim, or there were special circumstances making it unjust not to re-open the claim.  

The Board’s decision

10.  The time for the applicant to appeal the Director’s decision to the Board is 14 days.[3]  It was more than six months after the Director’s decision on 10 April 2017 that the applicant filed with the Board his notice of appeal.  Under section 37ZT(2) of the Immigration Ordinance, the Board must decide, as a preliminary decision without a hearing, whether to allow the late filing of the notice of appeal.  By its decision dated 7 July 2017, the Board refused to allow the late filing of the applicant’s notice of appeal as it was of the view that the applicant had not provided good reason for the serious delay.  

The Judge’s decisions

11.  On 9 April 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the decision of the Director.  The Form 86 did not set out any specific ground for seeking relief.  It only stated that the applicant was not satisfied with the Board’s decision and that he still had death threat from his enemies who belonged to the ruling party.  The supporting affirmation further stated that the applicant had submitted supporting document during the interview with the Director, and he needed more time to submit more documents in support of his claim.  The affirmation exhibited an English translation of a First Investigation Report dated 13 March 2011 of a police station in Hazro, Attock.  It recorded that the applicant made a report about the killing of Bibi by her brother.

12.  The Judge heard the application at an oral hearing on 6 September 2019.  By his decision dated 9 December 2019, the Judge refused to extend the time for making the application and dismissed the application for leave to apply for judicial review.  He gave his reasons at [13] to [21] of the Form CALL-1 as follows:

“13. [The applicant] was by then also late with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

14. As the last day of the three-month period for him to filed his Form 86 fell on 7 October 2017, the Applicant was therefore more than six months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15. In the Applicant’s case, a delay of more than six months must be regarded as very substantial or excessive, for which he explained at the hearing of his application that he was not aware of the rules and that he had not received the Board’s decision until much later when he was informed by the Immigration Department without providing any further supporting details or documentary evidence. As such I am not satisfied that he has provided any good reason for his serious delay.

16. More significantly, nor did he put forward any reasonably arguable ground or basis to challenge the Board’s decision in refusing the late filing of his Notice of Appeal, and at the hearing of his application when he was invited to do so, he simply stated that he would like to be given more time to remain in Hong Kong as his life would still be in danger in his home country, which is of course not a reasonably arguable ground for his intended challenge of the Board’s decision.

17. Given the fact that the Applicant is no longer legally represented, and that the Court shall adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, I shall proceed to consider the Board’s decision with rigorous examination and anxious scrutiny as to its reasons for refusing his late filing of the Notice of Appeal.

18. As noted above, the reason provided by the Applicant for his late filing is that he received his document late but without providing any particulars or clarification as to what documents he was referring to, and given the fact that no documents were attached to his Notice of Appeal other than the Director’s Decision that he wanted to appeal, the Board was entitled to find, as it did in its decision, that the Applicant had failed to provide any good reason for his late filing of his Notice of Appeal, as it explained in [10]:

“It is for the Appellant to provide sufficient grounds to justify his breach of the time limit, which in this case was late by as long as half a year. He has not provided any reason or stated how, when, or why he had ‘received documents late’ nor what documents they were, nor when it was that he had received what documents. He has provided nothing to satisfy Section 37ZT(2) of the Ordinance or the Petition Guide paragraph 9.2 for his gross breach of the time limit. I see no basis to exercise discretion to extend time, hence the appeal is a nullity.”

19. As for the requirement of section 37ZT(2) of the Ordinance for the Board to take account of any other relevant matters of fact within its knowledge to decide whether by reason of special circumstances that it would be unjust not to allow the late filing of the Applicant’s Notice of Appeal, the Board did also include the merit, if any, of his intended appeal when it referred to his proposed ground of appeal in [9] of its decision, and given the total lack of particulars or specifics from the Applicant as already noted above, the Board was in my judgment entitled to find them to be just bare assertions and not valid basis for it to exercise discretion to extend time for his intended appeal or to justify re-opening his claim.

20. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s case.

21. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismissed his application.”

13.  On 17 December 2019, the applicant filed a summons to apply for leave to appeal the Judge’s decision on the basis that the Judge’s decision not to extend time for applying judicial review is an interlocutory decision.  The Judge heard the application on 17 January 2020.  By his decision handed down on 29 June 2020, the Judge refused to give leave to appeal. 

The present application

14.  On 7 July 2020, the applicant filed the present summons.  On 14 July 2020, the Court of Final Appeal handed down the Reasons for Judgment in H v Director of Immigration [2020] HKCFA 22 which held that there was no need to apply for leave to appeal to the Court of Appeal in respect of a refusal to extend time for applying for leave to judicial review.  However, by then, the time for the applicant to appeal the Judge’s 9 December 2019 decision had expired.  In light of all these, the Registrar of Civil Appeals directed on 29 July 2020 that the summons be treated as an application for extension of time to appeal against the Judge’s decision dated 9 December 2019.  

Reasons for our decision

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, 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: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

16.  Having regard to the matters stated in [13] and [14] above and the fact that the applicant is not legally represented, we are prepared to accept that the delay is excusable.  We would focus on the prospect of success of the intended appeal.     

17.  The applicant has not provided any proposed ground of appeal in both the summons and the accompanying affirmation.  His written submission made the following points (respectively Point (1) to Point (6)):  

(1)  There was a lack of legal representation in the BOR2 assessment.

(2)  The Director determined the further decision without ensuring that the applicant was aware of his rights and the definitions underlying the BOR2 risk ground.  Due to the lack of legal representation and language assistance, the applicant did not understand the process or the reasons for rejecting his claim.

(3)  The Board significantly relied on source of news which is not officially recognised or is simply hearsay, and also on cases that are fairly outdated considering the dramatic changes that have occurred. The lack of credible source of information has resulted in the Board making groundless speculation that it is safe for the applicant to return to his country of origin.

(4)  The applicant is in genuine fear for his life.

(5)  The applicant disagrees with the Director’s and the Board’s decisions and considers his case has not been dealt with fairly.

(6)  The Director and the Board had not carefully and thoroughly assessed the applicant’s case.  It is untrue that state protection is available in Pakistan.  There are serious corruptions in Pakistan and the authorities are ineffective.

18.  Points (1) to (4) and (6) are entirely misplaced.  What the Director had decided is to refuse the applicant’s application to re-open his non-refoulement claim.  The Director had not made any assessment on the merits of the applicant’s non-refoulement claim.  The complaints made by the applicant under these points are therefore irrelevant.  As for Point (5), it is a mere general assertion.  The applicant has not particularised in what ways he considers the Director and/or the Board had not dealt with his case fairly.             

19.  We have also examined the reasons given by the Judge in refusing to give him leave to apply for judicial review.  We do not discern any error or ground for disturbing the Judge’s decision.    

20.  Given that the applicant has not been able to demonstrate that his intended appeal has any prospect of success, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 7 July 2020.