ALI HASNAIN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 8/2018

[2018] HKCA 232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 8 OF 2018

(ON APPEAL FROM HCAL 282 OF 2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Woodcock on 1 December 2017­ refusing leave to the applicant to apply for judicial review. The applicant came from Pakistan to Hong Kong illegally on 22 March 2014. He was arrested on 5 April 2014 and raised a non-refoulement protection claim on 7 April 2014. According to the applicant, because of his religious belief he will be harmed or killed by a group of men if he were to return to Pakistan.

2.  The Director decided against the claims on 3 February 2016. The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 3 March 2017 the Director dismissed the claim under BOR 2 risk (“Further Decision”).

3.  The applicant appealed against the Director Decision to the Torture Claims Appeal Board (“Board”) on 16 February 2016.  The Board held a hearing on 28 March 2017 and handed down the decision of 19 May 2017 (“Board Decision”) affirming the Director Decision. 

4.  The intended judicial review was in respect of the Director Decision, Further Decision and the Board Decision.  The Form 86 filed by the applicant on 13 June 2017 did not state any ground for judicial review. In his affirmation of 13 June 2017, he relied on the following grounds:

(1)  Lack of legal representation in the determination of his BOR2 risk and in the Board hearing.

(2)  The Duty Lawyer Service did not translate the non-refoulement form even though the applicant requested it. Also, the letter from the Director to the applicant requesting further information on BOR2 risk was too technical.

(3)  The Director failed to give reasons for the Further Decision.

5.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [15] to [22] of the CALL-1 Form:

(1)  The fact the applicant was unrepresented in his appeal before the Board has not been shown to be procedurally unfair.

(2)  There is no suggestion from the applicant that the non-refoulement form was not translated properly and this had led to injustice.

(3)  In the hearing, the applicant confirmed to the judge that he understood the content of the letter requesting further information because it was read to him.  He also knew there was a time limit for reply.  He did not seek an extension of time.

(4)  The complaint against the lack of reasons in the Further Decision was not put forward as a ground of appeal before the Board.  In any event, the Director did give reasons in his Further Decision.

(5)  None of the grounds showed that there was an error of law by the Director or the Board.  There was no evidence of procedural unfairness or a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test.  They were not Wednesbury unreasonable.

6.  According to court record, the CALL-1 form and the sealed order of the judge were sent by post to the applicant on 1 December 2017.

7.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  On 22 January 2018, he applied by summons for extension of time to appeal.  His application was supported by an affirmation of the same date.  In the affirmation, he said he is on welfare assistance only and cannot work in Hong Kong.  He had to save up before he can afford the filing fee for the appeal.  The applicant did not include any draft notice of appeal in his affirmation. 

8.  On 26 January 2018, the Registration of Civil Appeals gave directions for the further conduct of the application for extension of time to appeal.  These included directions for the filing of a skeleton argument by the applicant, and (if they chose to do so) by the interested parties, following which the court would decide whether to deal with the application on paper or by way of an oral hearing.

9.  The applicant lodged written submissions on 13 February 2018 in support of his application.  In those submissions, written in English (like all the documents he placed before us), he explained that he did not have the means and resources to find out what the “next step” after the CALL-1 form was.  He wanted to “proceed based on reasons of procedural fairness”.  The 1^st interested party did not file any submissions while the 2^nd interested party indicated that it would take a neutral stance.

10.  Having reviewed the papers, we decided that the application should be dealt with on paper.

11.  In our view the applicant failed to provide a satisfactory explanation for his delay in bringing this appeal.  The applicant took no steps to inform the court about the alleged difficulty in paying the filing fees until one and a half months after the CALL-1 form.  Also, the applicant apparently received some assistance in preparing the judicial review application.  We cannot accept that he did not know, or was unable to find out, what action to take after the unsuccessful application for judicial review. 

12.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217/2015, 22 January 2016.  The same principle applies in non‑refoulement cases: see Re Akram Mohammad HCMP 1601/2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452/2016, 22 November 2016.   

13.  Having considered the submissions of the applicant in light of the materials before us, we found the judge’s observations to be justified.

14.  Regarding the lack of legal representation argument, it is clear from §3.6 of the Board Decision that the applicant’s rights had been explained to him (presumably through an interpreter).  The applicant could not point to any real prejudice he suffered from the lack of legal representation.  In any event, the applicant was able to proceed in English in the court below and provide documents written in English for this appeal. There is no reasonably arguable basis to challenge the fairness of the process.

15.  The applicant failed to show any real prejudice arising out of his complaints concerning the non-refoulement form and the letter requesting further information.  This ground has no merit.

16.  Regarding the complaint about the lack of reasons in the Further Decision, the Director did provide adequate reasons.  This ground has no merit.

17.  We do not see any errors of law or procedures in the proceedings before the Board. We agree with the judge that leave to apply for judicial review should not be granted.

18.  For these reasons we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 22 January 2018 is dismissed accordingly.

19.  We are of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.