RE MUHAMMAD SHEHBAZ

CAMP 261/2019

[2020] HKCA 256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 261 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 750/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 28 June 2018, Deputy High Court Judge Josiah Lam (“the Judge”) refused to grant leave to the application to apply for judicial review against the decision of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) to reject/dismiss the Appellant’s non-refoulement claim (“the Decision”).

2.  On 14 October 2019, Deputy High Court Judge Bruno Chan refused to grant leave for the Applicant to appeal against the Decision out of time (“the EOT Decision”).

3.  By a Summons dated 17 October 2019, the Applicant sought leave from this Court to appeal against the EOT Decision.  The Summons was supported by an affirmation of the Applicant filed on the same date.

4.  On 18 October 2019, the Applicant was directed to lodge with the court written submissions by 6 November 2019.  The deadline was extended to 25 November 2019 by order of the court dated 7 November 2019, which also stated that if he failed to lodge written submissions by the extended deadline, he would be debarred from doing so and his application for leave to appeal would be determined on the basis of the Summons and the affirmation filed in support.  These directions were communicated to the Applicant by post on 7 November 2019.

5.  Notwithstanding those directions, the Applicant did not lodge any written submissions by the stipulated deadline or at all.  In the circumstances, he is deemed to have waive his right to make further representations and the Court would process this application on paper based on the available materials. 

Background

6.  The Applicant is a national of Pakistan.  He entered Hong Kong first in October 2000 but was repatriated to Pakistan in December 2001.  On 3 June 2002, the Applicant entered Hong Kong again as a visitor, using another identity, and was required to leave Hong Kong after 10 June 2002.  However, he overstayed and was only arrested by the police in July 2006.  He then lodged a torture claim on 17 July 2006.

7.  The Applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by his stepmother Mukhtiari (“M”) and the Pakistani police because of M’s grudges against him.  The factual background was succinctly summarized by the Judge in [1] – [12] of the Form CALL-1 ([2018] HKCFI 1412).

8.  By two notices of decision dated 19 August 2016 and 31 October 2016 respectively, the Director assessed the Applicant’s claim on all applicable grounds and refused such claim. The former covered the torture risk[1], the persecution risk[2] and the CIDTP (BOR 3 risk)[3], and the latter the life risk (BOR 2 risk)[4].

9.  The Applicant lodged an appeal against these decisions to the Board.  On 4 November 2016, the Applicant appeared before the Board for an oral hearing of the appeal.  After hearing the Applicant, the Board found that many allegations of the Applicant’s lacked reliable evidence. The Board did not accept that state protection was not available to the Applicant and there were no substantial grounds for believing the Applicant would be subjected to any real risk that warranted non-refoulement protection. The Board therefore refused the Applicant’s non-refoulement claim with respect to all four applicable grounds on 16 November 2016.

The Judge’s Decision

10.  On 10 October 2017, the Applicant filed a Form 86 seeking leave for judicial review. 

11.  The Applicant’s application for leave for judicial review was grossly out of time, being more than 10 months from the date of the Board’s decision on 16 November 2016.  The Applicant did not apply for an extension of time in the section for “Relief Sought” in the Form 86, though in paragraph 16 of his supporting affirmation[5], he did acknowledge that an extension of time was required under Order 53, rule 4(1) of the Rules of High Court, Cap 4A. 

12.  Upon the request of the Applicant, oral hearings took place on 3 May 2018 and 30 May 2018.  The Applicant appeared in person.  A Punjabi interpreter provided interpretation service in court.

13.  After summarizing the background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to grant leave for the Applicant to apply for judicial review.

14.  In particular, the Judge found that the Applicant had failed to put forward any reason for the long and undue delay, and set out his reasons for such finding in [36] – [43] of the Form CALL-1 dated 28 June 2017 ([2018] HKCFI 1412) as follows:

“ 36. The Applicant only took out the current application for leave for judicial review on 10 October 2017 while the Director's decision, the Director's further decision and the Board’s decision were respectively dated 19 August 2016, 31 October 2016 and 16 November 2016. That is to say, those decisions had been issued respectively for more than 13 months, 11 months and 10 months by the time the Applicant filed the current application for judicial review on 10 October 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 16 November 2016. Therefore, the relevant date to be considered as the date when grounds for the application first arose in relation to all decisions would be 16 November 2016. Given there was a grace period of three months to file the application for leave for judicial review, the current application with respect to the Director's two decisions and the Board’s decision was all late by more than 7 months.

37. The Applicant admitted he had received the notices of the various decisions though he was remanded in custody. (The Applicant came to Hong Kong on this occasion in June 2002. He was arrested by the police in July 2006. Since then, he was imprisoned and released a few times. The events from the Director's interview to the Board's decision took place between August - November 2016. During this period, the Applicant was detained in the Castle Peak Bay Immigration Centre. The Applicant said he was in custody there between July 2016 and 16 October 2017.)

38. The Applicant admitted he got the notices of decisions while being detained. He said he could not read or write. He also submitted that he had no knowledge of the procedure. He alleged he was not able to get assistance while in custody.

39. It is, however, to be noted that both Form 86 and the Applicant’s affirmation were written the date of 4 August 2017. Whoever prepared those documents must be acting on the Applicant’s instruction while the Applicant was still in custody. The documents were filed on 10 October 2017, also while the Applicant was still in custody. It indicates that despite the Applicant was being detained, he was able to obtain assistance from others to pursue his legal rights. His lateness in filing the current application for leave for judicial review was not cause by his being detained.

40. In court, the Applicant claimed he had constant bleeding in his right eye and asthma. He had to go to hospital often. However, he need not be hospitalized. That means whatever illnesses the Applicant might have, they were not serious enough to hinder his function and his exercise of legal rights.

41. All added up, the Applicant was still short of reason for filing the current application late by more than 7 months.

42. The provisions for time limit are not to be applied technically. Yet, the law must maintain a disciplined approach otherwise public administration would be thrown into uncertainty and chaos.

43.  The Applicant failed to put forward any reason for the long and undue delay.  There is also no merit in his application (see paragraphs 44-45 below).  His late application for leave for judicial review should not be allowed.”

15.  The Judge nevertheless went on to consider the merits of the Applicant’s application and found that the application ought to be refused for having no realistic prospects of success.  The Judge set out his reasons for such finding in [44] – [46] of the Form CALL-1 as follows:

“ 44. The Applicant had laid a barrage of complaints against the Director and the Adjudicator. I have reviewed the Director's decision plus further decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant's complaints is substantiated.

45. In my judgement, 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. Each had 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 that they were acquainted with the facts and the law. They gave balanced consideration of COI relevant to the Applicant’s claim. They considered the Applicant's case carefully and applied the law correctly. 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 claim.

46.  The Applicant's complaints are not reasonably arguable either against the Director or the Board.  He has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant him leave for the review.”

Interlocutory Nature of the Decision

16.  As explained by this Court in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419; [2018] 4 HKC 440, the refusal of a Court of First Instance judge to extend the time for an application for leave for judicial review is interlocutory in nature.  This is so even if the first instance judge also made an order refusing leave for judicial review: Kwok Cheuk Kin (supra), at [20].

17.  The court cannot proceed with a consideration of leave application made outside the three-month period without first addressing if an extension of time should be granted for good reason.  In other words, the application for extension of time is not simply an aspect in the overall multi-faceted assessment of a leave application.  It is a prior step though as a matter of convenience the court often roll-up such application together with the application for leave when processing the matter.  In substance, these remain to be two discrete steps.  The court cannot simply give leave without asking if there is any good reason to extend time under Order 53, rule 4(1): Kwok Cheuk Kin (supra), at [28] – [29].

18.  Given the application was made by Form 86 (as opposed to a separate application for extension of time), it is appropriate for the court to dismiss, as opposed to refuse, the application when extension of time was refused.  However, it does not affect the character of the decision on extension of time: Kwok Cheuk Kin (supra), at [21].

19.  It follows from the above that the Decision was interlocutory in nature.  Hence, S14AA of the High Court Ordinance, Cap 4 applies to govern any appeal from the Decision and leave to appeal is required. 

20.  Pursuant to Order 59, rule 2B(1) of the Rules of the High Court, Cap 4A, an application for leave to appeal against an interlocutory judgment or order of the Court of First Instance must be made within 14 days from the date of the judgment or order.  The deadline for the Applicant to apply for leave to appeal against the Decision, therefore, expired on 12 July 2018, being 14 days after the date of the Decision on 28 June 2018.

The EOT Decision

21.  The Applicant only issued the Summons for the application for leave to appeal against the Decision on 8 August 2019, almost 13 months after the expiry of the 14-day period on 12 July 2018.

22.  In the supporting affirmation filed on 8 August 2019, the Applicant stated that he did not bring an appeal within time because he was detained at the Tai Lam Prison as at the date of the affirmation.  He did not provide information as to when his detention commenced and when it would be expected to end.  At the oral hearing on 13 September 2019, the Applicant further explained to the court that he was not aware of the law requiring him to file the appeal within 14 days and that he had at that time been serving a sentence of 13 months in prison for a conviction for burglary. Thereafter he was detained at the Castle Peak Bay Immigration Centre.

23.  By a decision handed down on 14 October 2019 ([2019] HKCFI 2381), Deputy High Court Judge Bruno Chan refused to grant an extension of time for the following reasons:

“ 4.     In the Applicant’s case, a delay of more than one year must be considered as very substantial or excessive, for which he explained that as he was not aware of the law requiring to file his appeal within 14 days, and that he had at that time been in prison for burglary for 13 months, and thereafter was detained at the Castle Peak Bay Immigration Centre (“CIC”), hence he was unable to file his notice of appeal until he was way out of time.

5.     He however did not provide any further particulars or supporting documentary evidence as to exactly when he was imprisoned for burglary or detained at CIC, as he was still able to attend before the learned judge on 3 May 2018, but between then and the deadline for him to file his notice of appeal on 12 July 2018, which was just over a period of less than 10 weeks, that there is no evidence from him as to whether he was by then already imprisoned.  As such I am not satisfied that he has provided any good reason for his very serious delay.

6.     More importantly, nor did he in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal. 

7.     In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.”

The Renewed Application

24.  By a Summons filed on 17 October 2019, the Applicant sought leave to appeal against the EOT Decision.

25.  Whilst it is technically possible to appeal against a lower court’s decision in refusing an extension of time for appealing, the appropriate course is to renew the application for extension of time before the Court of Appeal: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at [3] – [8].  Accordingly, we shall treat the Applicant’s Summons as if it were a renewed application for extension of time.

Legal Principles

26.  S14AA(4) of the High Court Ordinance provides that no leave to appeal shall be granted unless the court is satisfied that there is a reasonable prospect of success in the intended appeal, or that there is some other reason in the interests of justice that the intended appeal should be heard.

27.  In considering whether to extend time for appealing against an interlocutory decision, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted: Re Imbuh Karina Binti Yamroni [2019] HKCA 950, at [18].

28.  Even if the court does not accept that the applicant's explanation for delay is reasonable, the court would examine if he has merit in the intended appeal.  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 this Court to reverse the decision of the Judge: Re Imbuh Karina Binti Yamroni (supra), at [19].  If the delay is inexcusable, the merit threshold would be real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re MA [2019] HKCA 1020. 

29.  A decision on extension of time, involving a multi-faceted assessment, is an exercise of discretion.  The Court of Appeal will not disturb such assessment unless an applicant can pinpoint an error of law or principle, reliance on irrelevant consideration or failure to have regard to relevant consideration on the part of the first instance judge, or show that the decision is clearly wrong: Siti Maesaroh Sukari v Torture Claims Appeal Board [2019] HKCA 986, [16]; Kwok Cheuk Kin (supra), [47].

30.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: Re Imbuh Karina Binti Yamroni (supra), at [20]; see also Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  For the purpose of this application, the salient principles are as follows:

(a)     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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation 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.

(b)     An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(c)     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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

Discussion

31.  In the present case, the Applicant was late by almost 13 months in taking out the first application for leave to appeal against the Decision.  Such delay is very substantial and excessive.  The only explanation given by the Applicant was a simple statement in his affirmation filed on 17 October 2019: “I was not aware of the decision against me as I was detained.”

32.  The Applicant did not provide any further particulars or supporting documents in respect of the alleged detention. Further, we note that the Applicant was able to attend the hearing on 30 May 2018, and the Decision was rendered and sent to the Applicant in less than one month, on 28 June 2018. 

33.  The Applicant wrote to the court on 10 August 2018 stating that he had been arrested on 7 July 2018 and had been detained in Lai Chi Kok Reception Centre.  He asked the court to send its decision or order to the Reception Centre.  On 17 August 2018, the clerk wrote to the Applicant informing him that (1) the Decision had been rendered on 28 June 2018 and it had been sent to his address on the court record on 28 June 2018 and (2) the Applicant or his authorized representative could conduct a file search at the High Court Registry to inspect the decision and make a copy at his own costs if he so wishes.  The clerk’s letter was sent to the Applicant at the Hong Kong Correctional Services, Lai Chi Kok Reception Centre.

34.  Thus, in the ordinary course of post, the Decision would have been received by the Applicant before his arrest.  Further, by the letter of 17 August 2018, the Applicant was at least informed of the fact that the Decision had been issued and there were means for him to obtain a copy of the same.  He did not explain why no action was taken in light of such information if he had all along intended to appeal.

35.  Even if the Applicant was in detention after 7 July 2018, he was able to write to the court on 10 August 2018.  The Applicant was assisted by somebody when he submitted the Form 86 and supporting affirmation previously.  He did not explain why he could not seek outside assistance to obtain a copy of the Decision and prepare and make an application for leave to appeal at an earlier stage.  Someone prepared and lodged the application for leave to appeal in August 2019 whilst he was still under detention at the Castle Peak Bay Immigration Centre.

36.  In the circumstances, we are not convinced that the Judge erred in finding that the Applicant had not provided a satisfactory explanation for the delay.

37.  Be that as it may, we would also examine if the Applicant had any merits in the intended appeal.  As observed by the Judge, the Applicant did not put forward any ground for appeal other than the bare assertions in his affirmation filed on 17 October 2019 that there is a good ground of appeal.   Such bare assertion cannot constitute viable grounds for challenging the Decision. 

38.  In the absence of any proper grounds for disturbing the analysis in the Decision, this Court should not intervene.

39.  The Applicant has not demonstrated that he has any prospect of success in the intended appeal.  It would be futile to extend the time.  The Summons filed on 17 October 2019 is dismissed accordingly.

40.  We also order that pursuant to Order 59, Rule 2A(8), the Rules of the High Court, Cap 4A, no party may request this determination be reconsidered at an oral hearing inter partes.