RE MIRZA MUHAMMAD RAMZAN BAIG

CAMP 89/2022, [2023] HKCA 871

On Appeal From [2021] HKCFI 3175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 89 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2867 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 28 October 2021, DHCJ P. Li (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”) [2021] HKCFI 3175 and dismissed his application. Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 16 December 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 22 February 2022 [2022] HKCFI 461.

3.  On 12 April 2022, the applicant filed his summons in CAMP 89/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 12 April 2022, the applicant lodged his written submissions on 26 April 2022.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Pakistan.  He made a non-refoulement claim by way of a written representation on 13 August 2008 which was assessed under the unified screening mechanism on all applicable grounds including the BOR 3 risk[1], the torture risk[2] and the persecution risk[3].  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 9 October 2014. 

7.  On 20 October 2014, the applicant filed an appeal/petition to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  He informed the Board at the oral hearing that he would like to withdraw his appeal and return to Pakistan.  His appeal was dismissed accordingly on 20 April 2015.

8.  On 2 September 2015 however, the applicant filed an application in HCAL 180/2015 for leave to apply for judicial review of the Director’s and the Board’s decisions out of time.  On 18 April 2016, the court dismissed his application.  

9.  According to immigration records, the applicant did not depart Hong Kong.  On 10 September 2018, he submitted a written representation to the Director hoping to re-open his non-refoulement claim.

10.  On 28 September 2018, the Director wrote to inform the applicant that pursuant to section 37ZO(2) of the Immigration Ordinance (Cap.115), he must provide sufficient evidence in writing to satisfy the Director that there has been a significant change of circumstances since his previous claim has been finally determined, or that such change when taken together with the material previously submitted for his previous claim would give the subsequent claim a realistic prospect of success.

11.  In support of his application, the applicant filed 3 documents on 9 October 2018:

(i)    A First Information Report (“FIR”) dated 8 March 2006;

(ii)   A FIR dated 28 August 2018; and

(iii)  A copy of a register of land ownership.

The Director’s decision on the applicant’s request for a subsequent non-refoulement claim

12.  In the Director’s decision dated 3 December 2018 (“the Director’s 2018 Decision”), the applicant’s request to make a subsequent claim was refused for the following reasons[4]:

(1)  The incident mentioned in the FIR dated 8 March 2006 was part of the basis of his previous claim and had been mentioned in his non-refoulement claim form dated 25 March 2014.

(2)  The FIR dated 28 August 2018 was about a shooting incident which had occurred on 26 August 2015.  The FIR recorded that “T & S” shot at the applicant’s father as they knew the applicant had returned from overseas.  The time of the report was 2:30 pm on 21 February 2013. The Director pointed out that the applicant’s father could not, on 21 February 2013, have reported an incident which only allegedly occurred on 26 August 2015.  Secondly, the applicant had never returned to Pakistan since he came to Hong Kong in 2006.  The Director therefore concluded that it was an unreliable document.

(3)  The Director noted that the fear alleged in the subsequent claim arose from the same land dispute with “T & S” in 2006.  There was no significant change of circumstances.  Taking all available information into consideration, the subsequent claim would not have a realistic prospect of success.

Application for leave to start judicial review

13.  On 13 December 2018, the applicant filed a Form 86 to apply for leave to judicially review the Director’s 2018 Decision, but naming the Board as the proposed respondent.  The applicant did not advance any grounds and only exhibited the Director’s 2018 Decision.

The JR Decision

14.  The applicant did not request an oral hearing and the Judge proceeded to dispose of his application on papers.  After due consideration of the decisions of the Director and the Board, the Judge ordered that (i) the Form 86 be amended by substituting the Board with the Director as the putative respondent and (ii) leave to apply for judicial review of the Director’s 2018 Decision be refused.  The reasons for refusal was set out in [9] - [12] of the JR Decision:

“9. Under s. 37ZO (2), the Applicant must provide sufficient evidence to satisfy an immigration officer that, there had been a significant change of circumstances since the withdrawal. In addition, this change together with the material already submitted, would support a realistic prospect of success in the subsequent claim.

10. The Director disallowed the Applicant’s subsequent claim on 3/12/2018. The reasons are set out above. The Director acted in accordance with the above subsection. There is no error of law and procedure.

11. The Director had considered the documents submitted by the applicant. I agree with the findings of the Director. The FIR dated 28/8/2018 is unreliable. The FIR dated 8/3/2006 had already been considered in the previous claim. There was no significant change of circumstances.

12. In my view, the decision of the Director was reasonable.  There is no merit in the intended judicial review.  I refuse the leave application.”

Application for extension of time to appeal the JR Decision

15.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 16 December 2021 for an extension of time to appeal. That was dismissed by the Judge on 22 February 2022.  Hence, the Summons to this court.

Discussion

16.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

17.  As for (1), the applicant was late by 5 weeks between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.

18.  As for (2), the reasons for the delay, the applicant alleged that he delayed the filing as he did not have money to pay the filing fee.  In the Summons and supporting affirmation filed with this Court, the applicant however claimed that the delay was because he did not receive the JR Decision and he suspected that it had been lost in the post.  The court file shows that the JR Decision was sent on the same day as it was handed down to the last reported address of the applicant (which was the same address as provided in his summons dated 16 December 2021) and it was not returned as undeliverable post.  In our judgment, neither the excuse that he did not have money to pay the filing fee nor his bare assertion of failing to receive the JR Decision was a good reason for his substantial delay.

19.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision.

20.  In his written submissions, he quoted passages from ST v Director of Immigration ^[5][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on high standards of fairness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  He further referred to section 37ZT of the Immigration Ordinance (Cap. 115) and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge. However, he did not explain or elaborate how the legal authorities and provisions would apply to or assist his case.

21.  It is clear from the Director’s 2018 Decision that the applicant failed to establish his case under section 37ZO(2) of the Immigration Ordinance (Cap.115) by providing sufficient evidence to satisfy the immigration officer that there has been a significant change of circumstances since his previous claim has been finally determined, or that such change when taken together with the material previously submitted for his pervious claim would give the subsequent claim any realistic prospect of success.  The Judge was right in holding that the Director was entitled to reject his request to file a subsequent claim.

22.  In all, we are satisfied that the Judge had reviewed the Director’s 2018 Decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.   

23.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 12 April 2022.