RE ASGHAR FAHAD

CAMP 84/2018

[2018] HKCA 584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 84OF 2018

(ON AN INTENDED APPEAL FROM HCAL 729/2017)

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JUDGMENT

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

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam given on 25 April 2018 refusing leave to the applicant to apply for judicial review.  The intended application for judicial review was in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 22 September 2017 dismissing his appeal against the decisions of the Director of Immigration dated 6 May 2016 and 3 July 2017 rejecting the applicant’s claim for non-refoulement protection.

2.  In breach of Order 59 Rule 2A(1) and Practice Direction 4.1 paragraph 36(7), the applicant did not lodge any statement or submission in support of his application.  On 9 July 2018, the Registrar of Civil Appeals directed that unless the applicant lodged his written submissions by 19 July 2018, he would be debarred from lodging any submissions in support of his application for extension of time. 

3.  Notwithstanding the said direction, the applicant did not lodge any written submission by the deadline.  The Court therefore proceed on the basis that he does not intend to lodge any submission and we process the application on the basis of materials already lodged.

4.  Having reviewed the materials before us, we consider it appropriate to determine the application without a hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court (Cap 4A).

Background

5.  The applicant is a national of Pakistan.  He left Pakistan for the Mainland China on 7 January 2016.  He entered Hong Kong illegally on 8 January 2016, and was arrested by the police on the same date. He lodged his non-refoulement claim on 11 January 2016.  His claim was based on the fear that, if he returned to Pakistan, he would be harmed or killed by his paternal uncle and his cousin because he refused to transfer a portion of his father’s land to them.

6.  By a notice of decision dated 6 May 2016, the Director rejected the applicant’s non-refoulement claim.  The Director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

7.  By a notice of further decision dated 3 July 2017, the Director also assessed the applicant’s claim based on his BOR 2 risk[4], and determined the risk against him.

8.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 1 September 2017.  The Board did not believe the applicant’s account of events.  After considering independent country of origin information, the Board shared the Director’s view that state protection was available to the applicant.  It was also found that the applicant’s uncle and cousin were not state agents or acting in any official capacity.  Accordingly, the Board could not find any risk of torture based on the concept of state acquiescence, nor could it find any grounds for believing that the applicant would face a genuine and substantial risk of being subjected to ill-treatment if he returned to Pakistan.  The Board also considered that internal relocation could also alleviate any perceived risk of harm.  The applicant’s appeal was dismissed on 22 September 2017.

The deputy judge’s decision

9.  On 6 October 2017, the applicant applied to the court for leave to apply for judicial review against the Board’s decision.  The form 86 contained no ground for seeking reliefs.  In his supporting affirmation dated 6 October 2017, the applicant deposed that he felt unsafe in Pakistan, his life was threatened, and he would like to stay in Hong Kong for safety.

10.  The applicant did not request for an oral hearing for his application for leave to judicial review.  After summarizing the background and having due consideration of the decisions of the Director and the Board, the deputy judge dismissed the applicant’s application on 25 April 2018.  The reasons for refusing leave to apply for judicial review were set out in paragraphs 28 to 34 of the CALL-1 form:

“ Discussion

28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

29. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

30. The Applicant’s case was a simple one. The Adjudicator was acquainted with the facts of the Applicant’s case and the law. She had proper basis for her findings and conclusions, which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness.

31. The Director is only an interested party in the current application for judicial review. However, for the sake of complete discussion, I would say that even if the Applicant could seek judicial review against the Director (putting aside the 3-month limitation issue), the Applicant would have no arguable grounds to complain.

32. Though the Applicant was unable to participate in the screening interview on 8 March 2016 due to falling sick, the immigration officer subsequently sent a comprehensive list of questions to the Duty Lawyer Scheme acting for the Applicant. The Applicant did reply and the officer was satisfied that she had all the information required for proper screening. She did not consider that a substituted interview was necessary. There is no evidence to show the Applicant or the Duty Lawyer Scheme had complained about that. The Applicant did not raise this either in the current judicial review application. Nor did he demonstrate he would have further information to contribute which could only be achieved in a screening interview. In the circumstance, the officer was proper in her discharge of inquiry duties. The Director’s decisions were not Wednesbury unreasonable. There were no errors of law and no procedural unfairness.

Conclusion

33. In my judgement, the Adjudicator and the Director had proper basis for their respective findings and conclusions, 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 complaint against the Board or the Director, who had each engaged in proper 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 Board respectively showed they were acquainted with the facts and the law. They were entitled to render those findings, conclusions and decisions as they did and those findings/ conclusions/ decisions were all reasonable. The Director and the Board had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

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

Application for an extension of time to appeal

11.  According to the court files, a copy of the CALL-1 form and the sealed order were sent to the applicant by post on 25 April 2018.

12.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal.  The appeal period expired on 9 May 2018.  He failed to do so.  On 12 June 2018, he filed a summons in this court for an extension of time to appeal against deputy judge’s decision.  It was deposed in his supporting affirmation dated 12 June 2018 that he had mistakenly made another application for judicial review, instead of appealing against the deputy judge’s decision. 

13.  The applicant did not produce any draft notice of appeal.

Discussion

14.  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 reason for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted.

15.  In this case, the applicant was late for over a month.  Bearing in mind that the statutory appeal period is 14 days, the length of delay cannot be said to be short.  The applicant had indeed attempted to file another form 86 on 4 June 2018[5] (by which time, the time for appealing against the deputy judge’s decision has already expired).  As it is an abuse of process for a second application for judicial review to be made (see Re: Begum Khadija [2018] HKCA 571), on 12 June 2018 the Practice Master declined the filing of the second form 86 after an oral hearing and directed a refund of the court fees to the applicant. 

16.  The applicant filed the present summons on the same date after the hearing before the master. 

17.  Even accepting that the applicant had adopted the wrong procedure, the applicant has no explanation for the delay between 9 May 2018 and 4 June 2018 which by itself is a substantial delay.  As the delay is inexcusable, the applicant has to show real prospect of success in the intended appeal: see Re Akram Mohammad HCMP 1601/2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452/2016, 22 November 2016; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Sheetal Neupane v Director of Immigration CAMP 30/2017, 9 November 2017.

18.  As it has recently been said in Nupur Mst v Director of Immigration [2018] HKCA 524, 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 and the prospect of an appeal is assessed by reference to his intended grounds of appeal.  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.

19.  In the present case, the applicant has not put forward any viable ground for us to reverse the judge’s decision.  In our judgment, the intended appeal is doomed to fail.   

20.  For these reasons, we would not grant an extension of time to the applicant to bring a hopeless appeal.  The summons dated 12 June 2018 is dismissed accordingly.

21.  We are of the view that the application is totally devoid of merits.  Pursuant to Order 59 rule 2A(8) of the Rules of the High Court, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.