RE MEHMOOD IKHLAS

CAMP 28/2019

[2019] HKCA 567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 28 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1104/2017)

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J U D G M E N T

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

1.  By a summons dated 14 February 2019, the applicant seeks leave to appeal against the decision of Campbell-Moffat J (“the Judge”) given on 31 January 2019, whereby the Judge refused to grant leave for the applicant to appeal out of time.

2.  The present application stemmed from the decision of the Judge given on 12 November 2018 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 10 August 2017.

Background

3.  The applicant is a national of Pakistan.  He departed his home country for the Mainland China on 9 October 2013.  He attempted to enter Hong Kong on 20 October 2013, but was refused landing.  He claimed to have entered Hong Kong illegally on 22 October 2013, and was arrested by the police on 15 January 2014.  He lodged his non-refoulement claim on 19 January 2014. 

4.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be tortured or ill-treated because of a land dispute between his family and an individual, who was said to be a member of the Pakistan Muslim League-N.  The factual background of the claim was succinctly set out in [4] – [8] of the Form CALL-1 (published as [2018] HKCFI 1837).

5.  By two notices of decision dated 17 February 2016 and 28 November 2016, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds and decided against the application.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3], and the latter covered the BOR 2 risk[4].

6.  Pursuant to section 37ZS of the Immigration Ordinance (Cap 115) and paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Scheme, an applicant had 14 days to appeal against the decision of the Director.  In the present case, no appeal/petition was lodged within the time limit.  Instead, the applicant lodged his notices of appeal/petition against the decisions of the Director on 3 February 2017 (i.e., slightly less than a year after the Director’s first decision, and more than 2 months after the Director’s second decision).  The Board considered that the delays in both instances were substantial and decided not to allow the late filing of the notice of appeal/petition.

7.  More than 4 months later, on 19 December 2017, the applicant applied to the court for leave to apply for judicial review against the Board’s decision.  The applicant set out his grounds in the supporting affirmation dated 19 December 2017, a summary of which can be found in [14] of the Form CALL-1. 

8.  On 12 November 2018, the Judge refused to grant leave for the applicant to apply for judicial review (“the JR Decision”) on the basis that the applicant’s grounds for seeking relief were vague and without any evidential support.  The Judge said at [14] – [18] of the Form CALL-1 that:

“ 14. This Applicant has exactly the same Grounds of Review as Mirza Muhammad Mohsin in HCAL 1109/2017. The Applicant submitted the following Grounds:

1) the Director failed to consider the concept of state acquiescence, or extended state acquiescence;

2) he made insufficient enquiry;

3) failed to provide adequate reasons as to the decisions made;

4) failed to investigate the COI material;

5) failed to place weight on relevant information;

6) placed weight on irrelevant information;

7) failed to consider a consistent system of human rights violations;

8) placed weight on irrelevant matters, or on inaccurate or incorrect facts;

9) failed to call for psychological or psychiatric reports;

10) applied the incorrect standard of proof;

11) provided no reasonable basis for rejecting the Applicant’s credibility;

12) the decision maker was not the interviewer; and

13) there was no proper basis for consideration of internal relocation.

15. In so submitting, the Applicant adopted a scatter gun approach apparently adopting as many general points as he could find without any evidential support. This has not assisted him as it is unclear if he intends those same grounds to be applied to the refusal to allow him to appeal out of time. The Applicant has a duty to state the grounds of his intended judicial review succinctly and to show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. Merely reciting oft cited phrases from the authorities is of little use to the court without more.

16. This was a private land dispute between the Applicant’s father and MN involving three minor incidents, two of which were verbal threats only. Grounds 1, 7, and 9 are not relevant to the factual basis of his claim. These grounds are without merit. As far as Ground 2 is concerned, the Applicant was the subject of interview by the Director. If there was further information he wished to submit for consideration he was given an opportunity to do so and could have raised new material before the Director, which he did not do. The burden is upon the Applicant to make out his case and it is not for the decision maker to guess what that case is. Ground 2 is also without merit. For the reasons given above at paragraphs 11 and 12, above, Grounds 3 to 6, 8, 10, 11 and 13 are also wholly without merit. As for Ground 12, the interviewer held the delegated authority to act on behalf of the Director and this is no longer appealable in any event.

17. I have considered the papers and grounds carefully. I have not found any error of law or procedure. Quite the opposite. The Adjudicator was at great pains to explain his reasoning in respect of the legal principles applied to his decision. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. The Adjudicator took the Applicant’s case at its highest when applying the criteria applicable to granting an extension of time. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

18. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

9.  On 27 November 2018, the applicant filed a summons (which was dated 26 November 2018) for leave to appeal against the “order refusing to extend the period of making the application for leave to apply for judicial review” (sic). 

10.  An oral hearing was held on 31 January 2019, whereat the Judge explained that what was decided in the JR Decision was a refusal of leave to apply for judicial review, rather than a refusal to grant an extension of time.  The Judge then proceeded on the basis as an application to extend time to appeal against the JR Decision.

11.  The Judge did not accept the applicant’s explanation that the delay was due to his ignorance of the relevant time limit.  Even though the delay was a short one (only one day), the Judge refused to extend time to appeal on the ground that the applicant failed to pinpoint any viable grounds of appeal. 

Renewed application for leave to appeal

12.  By the summons dated 14 February 2019, the applicant sought leave to appeal against the refusal of extension of time. 

13.  As explained in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8], this is not a proper approach.  Instead, we treat the application as an application for leave to appeal against the JR Decision out of time.

14.  In the supporting affirmation filed on 14 February 2019, the applicant relied on the following to support his application:

(a)  Without any professional help, he was deprived of the opportunity to understand the judgments and to make a proper grounds of appeal;

(b)  He was unaware of any time limit for appealing;

(c)  The Judge erred in determining that there was no prospect of success in the intended appeal; and

(d)  The staff of the judiciary did not direct him to put forth any grounds of appeal in the application.

15.  In his written submission lodged on 7 March 2019, the applicant repeated what was deposed in his aforesaid affirmation.

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 extension of time to appeal is granted.  In considering whether to extend the time for appeal against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; 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 should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.  The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge.

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 of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; and Re Md Shohel Sheak [2018] HKCA 714 at [13].  For the purpose of this application, the salient points are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for new arguments to be run is limited.  This Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  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. 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 it is a fresh application for judicial review.

Discussion

19.  Under Order 53, rule 4 of the Rules of the High Court (Cap 4A), judicial review must be made promptly and in any event within three months from the date when the grounds for the application first arose.  In the present case, the Board’s decision was made on 10 August 2017.  Hence, if the applicant wished to seek leave to apply for judicial review against that decision, he should have done so on or before 10 November 2017.  He only made the application for judicial review on 19 December 2017.  There was a substantial delay of more than 5 weeks.

20.  As held in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419; and Re Rafaqat Ali [2018] HKCA 440, the applicant should have applied for an extension of time to bring his judicial review regarding the Board’s decision.

21.  He did not do so and the judge did not address this question in the decision of 12 November 2018. Instead, the judge focused on the lack of merit in the intended judicial review in refusing leave.

22.  For the purpose of the application now before us, we are content with focusing on the merit of the intended judicial review.

23.  The merit is to be assessed by reference to the grounds advanced by the applicant in challenging the decision of the Board.

24.  The judge addressed the grounds advanced by the applicant before her in the Form CALL-1 of 12 November 2018, see in particular paras 14 to 16 thereof. There is nothing in the applicant’s materials to persuade us that the judge was wrong in any material respects in coming to such view.     

25.  The applicant’s complaint about lack of professional assistance cannot avail him, see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37 and Re Zafar Muazam [2018] HKCA 176.

26.  There is also no duty on the part of the staff in the Judiciary to render any advice to him.

27.  In such circumstance, we take the view that the intended judicial review has no prospect of success. The applicant could not meet the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Disposition

28.  We therefore refuse to grant extension of time to the applicant to appeal out of time under CAMP 28/2019.  The summons of 14 February 2019 is dismissed accordingly.