RE KHAN MUSHTAQ

HCAL 476/2019

[2020] HKCFI 3073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 476 OF 2019

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DECISION

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Background

1.  On 12 May 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant extension of time to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 28 April 2017.  The Board in its decision upheld the decisions of the Director of Immigration (“the Director”) dated 8 December 2015 and 14 November 2016 rejecting the applicant’s non-refoulement claim.

2.  The Judge dismissed the application for reasons stated in [12-19] of his decision (Form CALL-1). Significantly the Judge found in his conclusion that the applicant’s intended application for judicial review had no reasonable prospect of success.

3.  By a summons filed on 27 May 2020, the applicant applied for extension of time to appeal against the Judge’s refusal.

4.  On 14 July 2020, the decision of H v Director of Immigration [2020] HKCFA 22 was handed down by the Court of Final Appeal.  The CFA held that the refusal by a judge of an extension of time to make an application for judicial review is part and parcel of a refusal to grant leave to apply for judicial review.  Therefore, the decision is appealable as of right by reason of Order 59, rule 21(1)(g): paragraph 42 of the judgment.  There is no further need under section 14AA of the High Court Ordinance (Cap 4) for an applicant to seek leave to appeal before the Court of First Instance judge before he/ she may appeal directly against the judge’s refusal to extend time to apply for leave for judicial review.

5.  However, the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court ended on 26 May 2020.  He was therefore late by one day with his intended appeal when he filed his summons.

6.  In his summons, he stated that he got the court’s decision on 26 May 2020 from his mail box.  However, in his supporting affirmation he said he missed the time to apply.  He was sorry to not find the judgment in his mail box.  Yet, at the hearing, he said he was late because he did not have the money for the filing fee for his appeal.

7.  As to his grounds of appeal, he said at the hearing that in August 2016 (when he had been in Hong Kong) there was a bomb blast in his country which killed a minister of Pakistan.  His enemies falsely put his name and his son’s name on the list of people responsible for the bombing.  His son has been taken away.  If the applicant is returned to his country, he will be killed.

Discussion

8.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

9.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

10.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

11.  The explanations of the applicant for the delay were vague and inconsistent.  However, the length of delay in the present application was only 1 day, I will treat the delay as insignificant and focus on the merits of the intended appeal.

12.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Assessment of evidence and evaluation of risk are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.

13.  The basis of the applicant’s non-refoulement claim is that he would be harmed or killed by his relatives in Pakistan because of a land dispute as he refused to sell his land to them.  He was assaulted and threatened that he would be killed if he refused to give his land.  In fear for his life, he left his country in October 2013 with a visa for Mainland China and then sneaked into Hong Kong.

14.  The Board, among other things, dealt with the applicant’s complaint about the false allegation by his relatives of his complicity in the bombing in August 2015 in which the Home Minister of Punjab was killed.  I take it that the bombing in August 2016 which the applicant referred to at the hearing before me was the same incident.  Otherwise, it would be something new that has not been raised before and unlikely to be convincing.

15.  The Board found the story about the false accusation of his complicity in the assassination enters the realm of fantasy and becomes incredible.  He concluded that there is no real risk that, if refouled, the applicant would be killed or suffered CIDTP or torture at the hands of his relatives or because of any false allegation made by them.

16.  In his decision dated 12 May 2020, the Judge noted that the applicant’s application for judicial review was late for more than 21 months.  He did not find the explanation for the delay attractive.  In respect of the Board’s decision, the applicant’s main complaints were that the Board did not advise him to obtain medical report which should support his claim; and that his family was recently arrested for the bomb blast.  The Judge dealt with each of the grounds of review [17-18] raised by the applicant and found no merits in each of the grounds.  The Judge reasoned that on the medical report ground the applicant did not raise the issue, the Board had no duty to give legal advice.  The ground referring to the arrest of his family also failed as the Board found that his evidence was not credible.

17.  In the present case, the Board gave very detailed reasons, all reasonable in my view, why it rejected the applicant’s appeal.  I cannot see any errors or unfairness in its decision.  The Judge has considered the decision of the Board with rigorous examination and anxious scrutiny and could not find any proper grounds to intervene the decision of the Board.

18.  The applicant has not identified any grounds of appeal or errors in the Judge’s decision.  None could be ascertained from the papers or at the hearing.  At the hearing, he only emphasized about the false allegation by his enemies of his involvement in a bombing.  It was properly dealt with by the Board and the Judge.

19.  Having considered the materials before me, I am of the view that the findings by the Board and the Judge’s observations are fully justified.  I share the Judge’s view that the applicant’s claim for judicial review would not have any reasonable prospect of success.  The Judge was perfectly entitled to refuse to grant extension of time for leave to apply for judicial review.

Conclusion

20.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time, and the summons dated 27 May 2020 taken out by the applicant is dismissed.