RE SHAIKH ABDUL SAMAD

CACV 394/2018

[2018] HKCA 676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 394 OF 2018

(ON APPEAL FROM HCAL 359/2018)

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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 appeal against the decision of Deputy High Court Judge Josiah Lam given on 2 August 2018 refusing leave to apply for judicial review out of time. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 9 June 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 13 May 2016 and 10 March 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 6 March 2010 illegally and was later arrested by the police on 7 March 2010.  After his arrest, he lodged a non-refoulement claim on 9 March 2010. 

3.  The applicant’s claim was based on threats from an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [12] of the CALL-1 Form.

4.  By a Notice of Decision dated 13 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 10 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 12 April 2017, at which it considered both Decisions of the Director, the Board found at [32] of the Board’s Decision that the applicant’s case was fabricated and dismissed the appeal on 9 June 2017 (“Board’s Decision”). 

The deputy judge’s decision

7.  The applicant filed a Form 86 on 6 March 2018, almost 9 months after the Board’s Decision.  The applicant complained that the Director:

(1)   failed to properly consider state protection and the extended concept of state acquiescence;

(2)   failed to properly consider COI including police corruption and ineffectiveness in Pakistan;

(3)   failed to make sufficient enquiry; and

(4)   failed to advise the applicant to obtain medical reports and/or evidence from Pakistan authorities when deciding on the seriousness of the injuries suffered by the applicant.

8.  The applicant also complained that the Board:

(1)   failed to attain high standards of fairness required;

(2)   failed to appreciate the applicant was not legally represented;

(3)   failed to notice the errors committed by the Director; and

(4)   erred in a similar way as the Director did.

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 extend time for applying for leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review out of time at [35] to [43] of the CALL-1 form:

“35. Order 53, rule 4 of the Rules of the High Court states: –

(1) An application for leave to apply for judicial review shall 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.

(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.

36. In the present case, the Director’s decision, the Director’s further decision and the Board’s decision were respectively dated 13 May 2016, 10 March 2017 and 9 June 2017.

37. The Applicant should not seek judicial review against the Director’s decision and further decision before the Board rendered its appeal decision on 9 June 2017. Therefore, the relevant date to be considered as when grounds for the application first arose against the Director’s two decisions and the Board’s decision should all be 9 June 2017.

38. The Applicant only took out the current application on 6 March 2018. That was almost nine months after 9 June 2017. Given there was a grace period of three months for the filing, the current application was in fact almost 6 months late.

Legal principles for extending time

39. In CACV 63/2015 AW v Director of Immigration, the Court of Appeal stated:

23. here are two relevant statutory provisions: Order 53 rule 4(1) and section 21K (6) of the High Court Ordinance, Cap 4.

24. Order 53 rule 4(1) is in these terms:

‘An application for leave to apply for judicial review shall 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.’

25. Section 21K (6) provides as follows:

‘Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant -

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.’

26. The relationship between these provisions was explained by Ackner LJ in R v Stratford-on-Avon District Council, ex p Jackson [1985] 1 WLR 1319 at 1325F to G and approved of by Lord Goff of Chieveley in R v Dairy Tribunal, ex p Caswell [1990] 2 AC 738 at 746G. Whenever there is a failure to act promptly or within three months, there is ‘undue delay’. Even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains ‘undue delay’. The court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

27. In Re Thomas Lai [2014] 6 HKC 1, G Lam J considered the relevant authorities and stated the principles to be applied in an application to extend time for judicial review in §§43 to 45. I take the following summary of these principles from the submission of Ms Sara Tong, who appeared for the Director:

(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K (6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a ‘multi-faceted question’ the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’ (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

40. The Applicant admitted he received the Adjudicator’s decision in June or July 2017. He did not know he could apply for judicial review and he did not know he had to do it within three months. The Applicant claimed he only knew from his friends in early March 2018 that he could apply for judicial review and he immediately processed it. Ignorance, however, was not a good reason for an undue delay of nearly six months.

41. The Applicant also said he had been suffering from a giant cell tumour in the C2 section of his spinal cord. He felt numb in his head, neck and the right side of his body. However, he was not hospitalised between June 2017 and March 2018. Nor was he immobilized. He could still go to the Mosque once a week. He also went out to buy food once a week. He could also go to report to the Immigration Department every 14 days. Therefore, the Applicant’s ill-health could not mitigate his delay.

42. There was no justification for the Applicant’s substantial undue delay. His application for leave for judicial review against the Director’s decision plus further decision and the Board’s decision was also without merits (see paragraph 43 below). Therefore, his late application should not be allowed.

Merits

43. The Applicant’s complaints against the Director and the Adjudicator are vague. I have reviewed the Director’s decisions and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and applied the law correctly. They had considered the Applicant’s case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement.”

Grounds for appeal

10.  In the Notice of Appeal dated 14 August 2018 the applicant advanced the following grounds of appeal:

(1)   the judge failed to take into consideration that the delay in filing the Form 86 was caused by “procedural complexions” faced by the applicant while he was not legally represented; and

(2)   the judge erred in concluding that there were no merits in the applicant’s complaints against the Director and the Board.

11.  On 21 August 2018, the Registrar of Civil Appeals directed that the applicant may file submissions by 4 September 2018 as to why his appeal should not be dismissed for failure first to obtain leave to appeal from the Court of First Instance, having regard to the Court of Appeal’s decision in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, and that this appeal would thereafter be referred to this court for consideration on paper.

12.  On 27 August 2018, the applicant filed a skeleton which did not address the matters he was directed to address.  He submitted that he would be killed upon his return to Pakistan, that he was seriously ill and has appointments with Hong Kong hospitals until the year 2020, and appealed to be allowed to remain here.

Discussion

13.  The judge refused leave to bring judicial review proceedings out of time.  This decision was an interlocutory one (see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419).  The applicant ought therefore to have sought leave to appeal from the Court of First Instance before commencing the present appeal (ibid). The applicant failed to do so, and has failed to provide any justification for not doing so despite the Registrar of Civil Appeals’ directions of 17 August 2018. The appeal should therefore be dismissed on this ground alone.

14.  In any event, there is no merit in the first ground of appeal.  The judge dealt with the applicant’s reasons for delay at [40] and [41] of the CALL-1 Form, and we agree with his reasons for rejecting the applicant’s explanation for his delay. 

15.  The second ground of appeal, which is a complaint that the judge erred in holding that there was no merit in the applicant’s complaints against the Director and the Board, lacks particulars and is also bound to fail.

16.  The matters raised in the applicant’s skeletons are not valid grounds of appeal. 

17.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.