KHAN ASAD v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CAMP 85/2018

[2018] HKCA 562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 85 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 677 OF 2017)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Extension of time to appeal

1.1   Deputy High Court Judge (‘DHCJ’) Woodcock on 9 March 2018 refused to grant the applicant extension of time for leave to apply for judicial review against the Decision of the Director of Immigration (‘the Director’) dated 1 April 2016 and the Decision of the Torture Claims Appeal Board (‘the Board’) dated 2 June 2017.

1.2   The applicant by a summons dated 13 June 2018 applies to this Court for extension of time to appeal against DHCJ Woodcock’s order.  The Putative Respondent and the Putative Interested Party have both indicated their neutral stance regarding the applicant’s Summons Application by letters.  Pursuant to directions of the Registrar of Civil Appeals dated 14 June 2018, this Court will now deal with the application on paper.

2.1   The applicant is a Pakistani national who allegedly entered into Hong Kong illegally on 6 October 2013.

2.2   The applicant lodged a non-refoulement claim by written representation of 17 October 2013.  On 17 August 2015 a ‘Notice to Persons making a non-refoulement claim’ (‘Notice’) and a non-refoulement claim form (‘NCF’) were sent to the applicant.  The applicant declined duty lawyer service.

2.3   On 7 September 2015 the applicant was reminded by the Director to return the NCF on or before 5 October 2015.  He was reminded of the consequences of non‑compliance with the 28 day time limit : section 37Y(2), Immigration Ordinance (Cap. 115).

2.4   On 25 September 2015 a letter was sent to the applicant reminding him of the deadline of 5 October 2015.

2.5   On 16 October 2015 as the applicant did not return the NCF, the Director sent a letter to him informing him of his failure to return NCF by the deadline.  The Director informed him that his torture claim was treated as withdrawn on 6 October 2015 : section 37ZG(1), Immigration Ordinance.

2.6   On 22 February 2016 and 4 March 2016 the applicant submitted a fresh application for non-refoulement claim.  The Director treated it as a request to re‑open his torture claim.

2.7   On 7 March 2016 the Director requested the applicant to provide reasons by 21 March 2016 for his failure to return the NCF in time in 2015 and to provide proofs and reasons to support his claim.

2.8   On 1 April 2016 as the applicant did not reply to the Director’s letter of 7 March 2016, the Director refused the applicant’s request to re-open torture claim.  The applicant’s torture claim was deemed withdrawn by reason of his failure to return the NCF (‘the Director’s Decision’).

2.9   On 9 February 2017 the applicant filed an application for leave for judicial review against the Director’s Decision in HCAL 32/2017 (‘the 1^st Application’).

2.10   On 13 February 2017 the applicant filed an appeal out of time to the Board the Director’s Decision.  That means that the High Court (HCAL 32/2017) and the Board were processing the same Director’s Decision at the same time.

2.11   On 28 April 2017 the 1^st Application was refused by Patrick Li J (‘Decision of Patrick Li J’).

2.12   On 2 June 2017 the Board refused the applicant’s late filing of notice of appeal against the Director’s Decision (‘the Board’s Decision’).

2.13   On 25 September 2017 the applicant again applied for leave for judicial review in the High Court (HCAL 677/2017) against the Director’s Decision and the Board’s Decision (‘the 2^nd Application’).

2.14   On 9 March 2018 DHCJ Woodcock refused the applicant’s 2^nd Application.

3)  The Director’s Decision

3.   The Director stated in his Decision that the applicant was reminded to observe the time limit of returning his NCF within time but the applicant failed to do the same.  The applicant did not show the reason for failing to return his NCF was due to circumstances beyond his control : section 37Y, 37ZG(3) of the Immigration Ordinance.  The applicant’s request for re-opening his torture claim for consideration was denied.

4)  The Board’s Decision

4.   The Board stated that the applicant was 10 months late in filing his notice of appeal.  He claimed that he was ill, he did not know the address to file his notice of appeal, and when he was aware about it, only then he went to file his notice of appeal.  The Board ruled that at the end of the Director’s Decision, there were clear instructions of the address for the applicant to file his notice of appeal, should he wished to appeal to the Board.  It was unlikely he did not know the address.  As for the alleged illness, the applicant did not provide any medical proof.  In any event, the applicant should have sought help from the Immigration Department or Duty Lawyer Service.  He did not do so.  Following the approach in The Secretary of State for the Home Department v Begum (2016) ECWA Civ 122, the Board decided that the applicant’s 10 month delay was serious and significant.  The applicant gave no good reasons for non‑compliance with the time limit.  It was fair and just to refuse the applicant’s application.

5)  Decision of Patrick Li J in HCAL 32/2017

5.   Patrick Li J held that the applicant did not appeal to the Board before he made an application for leave for judicial review.  This means that the applicant did not exhaust alternative procedures, when it is trite that judicial review is a mechanism of last resort.  This reason alone was sufficient to refuse leave.  In any event, the applicant’s application for leave to judicial review the Director’s Decision was about seven months out of time.  This was an undue delay sufficient for refusal of leave.

6)  Decision of DHCJ Woodcock in HCAL 677/2017

6.   DHCJ Woodcock considered the merits of the case.  She held that in respect of the 2^nd Application seeking leave to judicial review the Director’s Decision, this has already been decided by Patrick Li J in the 1^st Application.  The matter was res judicata and must be refused.  Further, the applicant provided no reason for his lateness in making the 2^nd Application.  She further considered the legal principles for extension of time to seek judicial review and held that the applicant’s bare explanation for the delay was not a good reason for the Court to extend time.  There was no question of general public importance.  The delay alone was sufficient to dispose of the application and she so held.  She considered the Board’s Decision and held that there was no error in the Board’s Decision.  There was no evidence of procedural unfairness, nor a failure to adhere to high standards of fairness.

7)  The applicant’s grounds of appeal

7.1   As far as we can understand, the applicant states in his summons of 13 June 2018 that he was out of time because he was informed of the Decision of DHCJ Woodcock only on 5 June 2018.

7.2   The applicant states in his affirmation that :

‘ 1.No reasonable basis for rejecting my caliam [claim] credibility;

2.Failure to consider the extended form state acquiescence;

3.Failure to fully consider the COI reprts [reports] in assessing risk to the I KHAN ASAD.

 4* Irregularity of the decision-maker being a different person than the interviewing officer;

)procedural impropriety/unfairness (failure to investigate into the country of origin information of Pakistan);

5) Irrationality (failure to place weight on relevant information and/or selectively placing weight on irrelevant information);

6) Irrationality (failure to consider a consistent system of human right violations);

(6) Irrationality (failure to consider if state protection exists in Pakistan);

(7) Irrationality (placing weight on irrelevant matters, or on inaccurate or incorrect fact(s));

(8) Procedural impropriety (failing to call for psychological and/or psychiatric reports and/or evaluations);

(9) Procedural impropriety (applying the incorrect standard of proof);

10.No reasonable basis for rejecting my caliam [claim] credibility;

11.Failure to consider the extended form state acquiescence;

12.Failure to fully consider the COI reprts [reports] in assessing risk to the I KHAN ASAD.

13* Irregularity of the decision-maker being a different person than the interviewing officer;

14.No proper basis for consideration of internal relocation;

My life fear if I retrun [return] my home country my life risk or receiving death.’

7.3   A 27 page exhibit was attached to the affirmation. 

7.4   The applicant filed a four page Skeleton Submission.  He states, amongst other things, that :

‘ (a) that the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirement;

(b) that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(c)  that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or were the result of procedural errors or unfairness; and

(d) that the Board failed to apply the high standards of fairness owed to a self- represented claimant.

(a) that the hearing bundle which was all in English was provided to him without giving him sufficient time to prepare for his appeal before the Board,

(b) that the Board had significantly relied on sources of news not officially recognized or were hearsay or outdated that resulted in its groundless speculation that it would be safe for him to return to his home country.’

8)  Legal principles

8.   The relevant factors to consider for extension of time to appeal are as follows :

(1)   Length of the delay;

(2)   Explanation of the delay;

(3)   Merits of the substantive application;

(4)   Prejudice; and

(5)   Questions of general public importance.

Xie Jing Feng v Director of Immigration & Anor [2018] HKCA 145, at paragraph 4.1.

9)  Our view 

9.1   The decision of DHCJ Woodcock was served on the applicant by post accordingly to the address provided by the applicant.  The applicant has not provided details why he only came to know of the decision so late.

9.2   The applicant has not shown why extension of time should be given to him.  The grounds he relied upon in his affirmation and Skeleton Submission are clearly irrelevant to the basic fact that he had not given reasons for his delay in filing his NCF, his delay in appealing against the Director’s Decision, his delay in lodging the application for leave for judicial review to Patrick Li J who had refused his application.  DHCJ Woodcock was clearly entitled to refuse his 2^nd Application. There are no merits at all in the present application.

10.   There is no prospect of success in the intended application for judicial review and the application is dismissed accordingly.