RE ARSHAD MUHAMMAD

CACV 407/2019

[2021] HKCA 163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 407 OF 2019

(ON APPEAL FROM HCAL 1661/2018)

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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 Deputy High Court Judge Woodcock given on 17 June 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 14 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 25 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally and was arrested by the police on 13 November 2013.  He lodged a non-refoulement claim on around 29 November 2013.  The applicant’s claim was based on threats from his former employer who was said to be involved in a number of illegal activities.

3.  By a Notice of Decision dated 13 January 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]. The applicant appealed to the Torture Claims Appeal Board which dismissed his appeal on 24 March 2017.

4.  By a Notice of Further Decision dated 25 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

5.  The applicant again appealed to the Torture Claims Appeal Board.  The Board dismissed the appeal on 14 August 2018 without a hearing.  This decision (“Board’s Decision”) is the subject matter of these proceedings, and is the only decision of the Board referenced in the applicant’s Form 86 applying for leave for judicial review.

6.  At [10] of the Board’s Decision, the Board held that none of the material before it showed that the life of the applicant would be at risk upon his return.

The judge’s decision

7.  The applicant filed a Form 86 on 17 August 2018 against the Board’s Decision, which contained no ground for seeking relief.  In the affirmation dated 17 August 2018, the applicant deposed that:

“My life is still danger in my country. So please accept my application. Thanks.”

8.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

9.  After summarizing the facts and background of the case and giving due consideration to the Board’s Decision, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [6] to [8] of the CALL-1 Form:

“6.  The applicant has filed an affirmation but it contains no grounds. He does not complain of procedural impropriety; he does not complain that the adjudicator was wrong not to conduct an oral hearing and that he was deprived of a chance to be heard. He only repeats that his life is still in danger in his home country. In view of the lack of grounds, a letter was sent to the applicant dated 25 January 2019 to which he replied that he had no further submissions to make to support his application.

7.  I have examined the adjudicator’s decision as well as the decisions of the Director and find no error of law by the decision-maker. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. I see no impropriety or unfairness in the decision not to conduct another oral hearing to consider the additional ground of a BOR 2 claim. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

8.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Application for extension of time to appeal and grounds for appeal

10.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 5 July 2019, the applicant applied for an extension of time to appeal.  His application was dismissed by the judge on 30 August 2019.

11.  The applicant filed a Notice of Appeal against the judge’s refusal to extend time dated 4 September 2019 where the applicant contended that:

“the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

12.  In his affirmation of the same day filed in support of the appeal, the applicant deposed that:

“1.  This is my application to apply for leave to appeal…

2.  I am unrepresented and did not have access to any legal advice.

3.  I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

4.  I humbly request the Court to exercise its discretion to allow me to appeal.”

13.  On 5 September 2019, the Registrar of Civil Appeals directed that the notice of appeal be treated as a renewed application to this court for extension of time to appeal, which would have been the correct application for the applicant to make.

14.  In his skeleton submissions lodged on 16 September 2019, the applicant cited a number of cases on the high standard of fairness, and submitted that the Board acted unfairly in dismissing his appeal by failing to properly assess his credibility.  The applicant also relied on section 37ZT of the Immigration Ordinance, Cap 115 concerning the late filing of notice of appeal to the Board.

Discussion

15.  Having considered the papers, we are satisfied that as an application for extension of time for appealing, this application can properly be dealt with on the papers without the need for an oral hearing, and may be dealt with by two judges.

16.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  The lack of legal advice, by itself, is not a good excuse for failing to observe the period for bringing an appeal. We nonetheless go on to consider the merits of the intended appeal.

17.  We note that the applicant only advanced one ground for judicial review and that is the alleged danger he would face upon his return.  Therefore, the majority of the grounds of appeal now mentioned had never been raised as a ground for judicial review before the court below.  It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).

18.  As for the ground based on the alleged danger upon his return, this court has repeatedly held that an application for judicial review does not operate as a further appeal and that the court will only interfere with the decision of the Director or the Board on public law grounds.  As the applicant has failed to identify any public law error in the Board’s Decision, this ground is also without merit.

19.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The “Notice of Appeal” dated 4 September 2019 is dismissed accordingly.

20.  We are also 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.