RE MUGHAL ZIA UR REHMAN

CAMP 126/2021

[2021] HKCA 1622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 126 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 781 OF 2018)

____________________

____________________

_________________

J U D G M E N T

_________________

Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for leave to appeal out of time against the decision of Deputy High Court Judge C P Pang (“Judge”) on 4 November 2020[1] refusing to grant leave to the applicant to apply for judicial review, and refusing to grant an extension of time to do so, against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 4 August 2017.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 5 December 2016 refusing the applicant’s request to reopen his non‑refoulement claim.

2.  On 15 April 2021, the Judge refused to grant an extension of time for the applicant to appeal against the Judge’s decision of 4 November 2020.

Background

3.  The applicant is a Pakistani national.  He surrendered himself to the police on 6 March 2009 for illegally remaining in Hong Kong and was referred to the Immigration Department on 10 March 2009.  He lodged a torture claim on 12 March 2009, which the Director rejected on 30 August 2012.  Subsequently the applicant raised a non‑refoulement claim, which was deemed withdrawn on 22 October 2016 due to his failure to submit a Supplementary Claim Form (“SCF”) within the specified time period. 

4.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by members of the Pakistan Muslim League (Q), because he was a member of the rival Pakistan Muslim League (N).  The factual background of his claim was set out at pages 1 to 5 of the Director’s notice of decision dated 30 August 2012.

5.  On 9 November 2016, the applicant made a written submission to request the Director to reopen his claim.  On 22 November 2016, the applicant provided the Director with information in support of his request to reopen his claim.  In his letter, the applicant explained that while he was detained at Hei Ling Chau Correctional Institution, he had requested a medical check‑up and the doctor there conducted X‑ray checks on him, and that he was not mentally properly ready to answer and complete his SCF.

6.  By notice of decision dated 5 December 2016, the Director refused the applicant’s request to reopen his claim, because the applicant had not submitted any medical report/certificate to support his claim that he was unable to complete and return the SCF on time due to medical reason(s) or due to the state of his mental health.  The Director also did not accept that being in prison or detention was a valid reason for delaying the completion of the SCF.

7.  The applicant appealed to the Board against the Director’s decision of 5 December 2016.  In its decision dated 4 August 2017 reached without an oral hearing, the Board set out and considered the procedural history of the matter at [2]‑[23], and eventually dismissed the applicant’s appeal, because it considered that the reasons given by the applicant were insufficient to support his application to reopen his claim and that he had therefore failed to provide sufficient evidence in writing, including medical evidence, to show that he was physically or mentally unwell and incapable of completing the SCF so that he was unable to return the completed SCF within the time limit.

The Judge’s decisions in the court below

8.  Nine months later, on 4 May 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation, the applicant stated that he was dissatisfied with the outcome of his claim because it was dismissed without proper screening and thorough investigation.  He also stated that his life was still in great danger should he return to Pakistan.

9.  Following consideration of the documents only, the Judge refused to grant leave for the applicant to apply for judicial review out of time.  The reasons were set out in [19]‑[28] of the Form CALL‑1 as follows:

“ 19. When the applicant applied to re‑open his claim, he claimed he was ‘not mentally properly ready to answer and complete your SCF’. Other than saying that he had x‑ray check conducted on him, he did not provide any medical evidence about his physical or mental condition in support of his claim.

20. In my observation, the Director had followed the proper procedure and given every opportunity to the applicant to submit the SCF. The applicant was also reminded that publicly‑funded legal assistance was available to him and warned of the consequence of his failure to do so. If he had indeed any difficulties in submitting the form, he could have informed the DLS and the Correctional Services for assistance.

21. He provided no medical evidence to support his claim that he was not physically or mentally fit to complete and return the SCF. The fact that he was being in custody did not give him a right not to return the claim form required by law. In any event, the time limit for him to return the form had been extended twice which was more than enough for him to complete and return the form. When the applicant failed to return the SCF by the extended deadline without satisfactory explanation, the Director was entirely proper to treat his application as having been withdrawn.

22. In his application to re‑open his claim, the applicant still failed to submit any medical report or evidence to support his claim that he was unable to return the SCF owing to his mental illness or health reason. In the absence of any evidence in support of his claim, I agree with the Board that the applicant had failed to provide sufficient evidence in writing to satisfy an immigration officer that the reason why he had not been able to return the completed SCF within the time limit was due to circumstances beyond his control.

23. In the affirmation of the applicant, he complained that his non‑refoulement claim was dismissed and disposed of without proper screening and thorough investigation. The complaint has no merit.

24. The applicant’s torture claim had previously been considered and refused in August 2012. His claim of fear was properly and thoroughly considered. One of the reasons for the refusal was the viability of internal relocation for the applicant. On that basis, there was no reason to provide him with international protection. When the applicant failed to return the SCF after repeated warning of the consequence of the failure, the Director was entirely proper to treat his subsequent non‑refoulement claim as withdrawn and refused to re‑open his claim according to the statutory requirement.

25. The Board did not conduct an oral hearing. I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277. In the Notice of Appeal filed with the Board, the applicant still did not provide any medical evidence in support of his claim of inability to return the SCF. Indeed, he mentioned nothing about his mental problem or the reason for his failure to return the required form before the specified deadline. I do not find the course adopted by the Board to be irregular or unfair.

26. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

27. Even now, the Form 86 and affirmation do not show any valid explanation for his delay in submitting the claim form to the Director. There is also no cogent evidence or information to establish a substantial risk of harm that he might face. Nor can I see that in the interests of justice his claim should be re‑opened.

28. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their refusal to re‑open the applicant’s claim.  Their decisions are not Wednesbury unreasonable.  I am not satisfied that the applicant has shown that there is any merit in his intended application.”

10.  Almost 4 months later, on 2 March 2021, the applicant took out a summons to seek an extension of time to appeal against the said decision of the Judge.  In his supporting affirmation, the applicant stated that he did not receive any correspondence from the High Court regarding the refusal of leave to apply for judicial review, because he was in the custody of the Correctional Services Department. 

11.  The Judge heard the summons on 26 March 2021.  In his decision dated 15 April 2021[2], the Judge noted at [5] and [7] that although the intended appeal was late by more than 3 months, he accepted that the applicant made his application for leave to appeal out of time promptly after learning of the court’s order, upon being transferred from prison to Castle Peak Bay Immigration Centre. 

12.  Nevertheless, because the applicant had not provided any explanation or evidence in support to explain his failure to return the SCF within the extended time limit, the Judge did not see any reasonable prospect of success in the intended appeal, and dismissed the summons accordingly.

The renewed application before this Court

13.  On 22 April 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 4 November 2020 refusing leave to apply for judicial review.  In his supporting affirmation, he stated that he tried to explain to the court that he was not mentally ready for the questioning, that he could not provide any medical evidence because he did not see any doctor, and that as a torture claimant, he had limited or no options to provide the required evidence.  The applicant also stated that as he was a litigant in person, illiterate and unrepresented, he was unaware of the legal procedures and time limits.

14.  On 25 May 2021, the Registrar of Civil Appeals directed the applicant to lodge his written submissions in support of his summons by 8 June 2021, failing which the matter would be referred to the Court of Appeal for determination based on the available materials without further notice.

15.  The applicant has failed to lodge any submissions as directed.  His application is therefore determined based on the available materials without an oral hearing.

Legal principles

16.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless an extension of time is granted.  In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

17.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court will still examine if the intended appeal has merits, in terms of whether there is a real prospect of success in persuading this Court to reverse the decision of the judge: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

18.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review. 

Discussion

19.  In the present case, although the applicant’s intended appeal was late by more than 3 months, as the Judge accepted that the applicant made his initial application for leave to appeal promptly after learning of the court’s order, we would proceed on the basis that there was a good excuse for the delay.

20.  What is fatal to the application, however, is that the intended appeal has in our view no prospect of success.

21.  Section 37ZG(1) of the Immigration Ordinance (Cap 115) provides that a torture claim “must be treated as withdrawn” if the applicant fails to return a completed SCF.  Section 37ZG(3) provides:

“ A torture claim treated as withdrawn under subsection (1) may be re‑opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that the person—

(a) had exercised all due diligence to return a completed torture claim form as required under section 37Y(2); but

(b) failed to return a completed form as required under the section because of circumstances beyond the person’s control.”

22.  The Director considered that the applicant had not provided sufficient evidence in writing as required by this provision for re‑opening the claim.

23.  The Board dismissed the applicant’s appeal, because it too considered that the applicant had provided no sufficient evidence to show that he was physically or mentally unwell and incapable of completing the SCF. 

24.  We have mentioned above the content of the applicant’s supporting affirmation for the present summons.  However, he did not explain why he did not see any doctor.  In the absence of any such explanation, the Board’s reasons for its decision could hardly be impugned.  As explained above, the question whether sufficient evidence had been provided for reopening the claim was a matter for the Director and, on appeal, the Board to decide.  It is not for the Court of First Instance, still less for this Court, to substitute its own opinion on that question.  The courts cannot intervene unless the Board’s decision is vitiated on recognised public law grounds.

25.  No such grounds have been established or even advanced by the applicant.  The Judge’s observations are justified.  There is no reasonably arguable case for judicial review.  The Judge was therefore quite right to refuse leave.

26.  For these reasons, we do not see any prospect of success at all in the intended appeal.  It would be futile to extend time only for a hopeless appeal to be lodged by the applicant.  The applicant’s summons dated 22 April 2021 is therefore dismissed.