RE HAIDER ALI

CAMP152/2019

[2020] HKCA 1079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 152 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 138/2017)

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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 Deputy High Court Judge Woodcock given on 10 November 2017 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 6 February 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 25 August 2015 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 4 January 2009 illegally and was arrested by the police on 2 March 2009 (although he claimed to have surrendered to the police, see [1] of CALL-1 Form).  He lodged a non-refoulement claim on 7 March 2009. 

3.  The applicant’s claim was based on threats from a group called Jaish-e-Mohammed. The details of the applicant’s claim have been summarised by the judge at [5] to [9] of the CALL-1 Form.

4.  By a Notice of Decision dated 25 August 2015 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 17 November 2016, the Board dismissed the appeal on 6 February 2017 (“Board’s Decision”).  The Board’s Decision covered the three grounds in the Director’s Decision and additionally the risk under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 risk”) for non-refoulement protection. 

6.  At [35] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board also held at [24] that state protection was available and at [19] that internal relocation was viable.

The judge’s decision

7.  The applicant filed a Form 86 on 13 April 2017 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 13 April 2017, the applicant deposed that:

“I am never agreed to [the Board’s Decision]. Why there are wasting my time about eight years something. Who allows them do that for me. I have file (No.B) page.B 74 this all file mistake from Duty Lawyer Service. I have evidence video audio recording which they are accept they do mistake”

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

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [20] to [22] of the CALL-1 Form:

“20. I have considered with rigorous examination and anxious scrutiny the papers of this application. I find the adjudicator’s decision to be without fault. This finding also applies to the hearing before the Director. The applicant’s affirmation sets out no grounds to consider.

21. Despite the lack of grounds, I have considered whether there was any error of law by the adjudicator or the Director. I have considered whether there is any evidence of procedural unfairness. There is no evidence decision-makers have not adhered to a high standard of fairness. I conclude the substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

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

Application for extension of time to appeal and grounds for appeal

11.  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 15 November 2018, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ KW Lung on 19 June 2019.

12.  By a summons dated 3 July 2019, the applicant renewed his application for an extension of time to appeal before this court, saying only that “I just want to appeal and I just want if court have time please watch this DVD with translator and after decide what I say is there or not immigration right or I am you decide, thank you.  I am waiting for justice.”  In the affirmation filed on the same day, he asked for the same.

13.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 30 July 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

15.  The applicant did not provide any explanation for his delay in bringing the intended appeal, he also did not advance any ground of appeal.  No DVD has in fact been lodged with his application.

16.  In the absence of any identifiable grounds of appeal, pointing to some error on the part of the judge, we see no prospect of success in the intended appeal, and will not grant an extension of time for a hopeless appeal.  The summons of 3 July 2019 is dismissed accordingly.

17.  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.