RE MAJID ABDUL

HCAL 2869/2018

[2021] HKCFI 27

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2869 of 2018

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DECISION

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Background

1.  On 6 August 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review (“the Judge’s order”) against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 29 November 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 26 October 2017 rejecting the applicant’s non-refoulement claim.

2.  The Judge refused to grant leave to the applicant to apply for judicial review for reasons stated in [12-15] of his decision (Form CALL-1).  Significantly the Judge found there is no evidence that shows the applicant has reasonable chance of success in his intended application for judicial review.

3.  By a summons filed on 18 September 2020, the applicant applied for extension of time to appeal against the Judge’s order.  The applicant had 14 days from that order to apply to appeal to the Court of Appeal.  He did not do so.  He now requires leave to extend time to appeal against that order out of time. The 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court ended on 20 August 2020.  He was therefore late by nearly a month with his intended appeal.

4.  His supporting affirmation filed on 18 September 2020 containing 9 pages can be broadly stated as follows:

(a)  He did not receive the Judge’s order until last week;

(b)  He has been deprived of the opportunity to understand the judgment and to make proper grounds of appeal;

(c)  The Judge has made a biased and erred judgment;

(d)  He has never received any Call-1 or Decision from the court;

(e)  His application was rejected without any oral hearing and he was not aware that he had to request for an oral hearing;

(f)  He asks the court to provide documentary evidence to show that the decision has been delivered to him successfully;

(g)  He did not receive it in the mail until a few days ago and due to the long weekend, he could not lodge any document until today;

(h)  The court should consider his language barrier and cultural difference;

(i)  He did not understand the judgment completely and should be given the necessary assistance in understanding the judgment.  He asked for a hearing for the judgment to be read to him and reasonable time to respond;

(j)  The Resources Centre for non-refoulement litigants was not helpful;

(k)  The court and authorities did not exercise caution and diligence in handling his case as a self-represented litigant;

(l)  The Judge failed to acknowledge his language incapability;

(m)  He did not have assistance of legal representative;

(n)  He requested for translation and language assistance and an oral hearing with an interpreter.

Discussion

5.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

6.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, 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 the Court of Appeal to reverse the decision of the judge.

7.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

8.  At the hearing on 26 November 2020, the applicant was assisted by an interpreter speaking Urdu.  The applicant said he only received the Judge’s order on 28 August 2020 from the letter box.  He then called the court and was told that there is no time limit and he can make submission any time.  He confirmed that he already understood the decision of the court and no longer required the translation of the decision to him by the court interpreter.  He asked for an adjournment of the case to the end of January next year for him to get documents from Pakistan as the decision mentioned that he did not have evidence to support his case.  I refused to adjourn the case.

9.  According to the court’s record, the Judge’s order and the Form CALL-1 were properly served upon the address given by the applicant, who is still using that address.  The documents were sent to the applicant by post.  The applicant confirmed in court that he did receive the Judge’s order.  However, he was inconsistent as to the date he received it.  In his affirmation dated 17 September 2020 and filed on the next day, he deposed that he did not receive any Call-1 or Order until last week [3]; he has never received any Call-1 or decision from the court [7]; he did not receive it until a few days ago [11].  At the least, the affirmation suggests that he received the court’s order no early than the first week of September.  However, at the hearing he categorically said he received the order on 28 or 29 August 2020.  It would also be unlikely that he was told by court staff that the court imposed no time limit for his compliance with rules of court.  I find the applicant’s explanation for his delay incredible.

10.  The length of delay in the present application was not insignificant.  The applicant does not have a cogent explanation for the delay.  The delay is not excusable.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal.  In any event, I find that he has no prospect of success at all.

11.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  Assessment of evidence and evaluation of risk 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.  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’s decision, the appeal should be dismissed.

12.  In the present case, the applicant’s claim was based on his fear that he would be harmed or killed by his cousin, Haris (his uncle’s son) for refusing to join his political party and over a dispute of the sale proceeds of a piece of land owned by the applicant’s father.  In short, his uncle forced his father to sell the land in 2009.  His uncle took all the proceeds and issued a cheque to his father which could not be cashed.  As the applicant told his father to dishonour the cheque and pursue with his uncle, he was threatened by his uncle over the telephone (as the applicant was in Oman from July 2009 to July 2010) that he would be killed if he returned to Pakistan.  His uncle died later.  His uncle’s wife and son (Haris) refused to repay the money to his father.  One day after the applicant had returned to Pakistan, Haris came to his house with three men trying to attack him.  Haris held the applicant’s collar tightly but was stopped by his father.  In mid-2015, Haris came again with some men trying to attack the applicant who was able to escape. The applicant did not report the attack to the police.  In fear of his safety, he departed Pakistan for Mainland China on 2 October 2015 and sneaked into Hong Kong a few days later.  In mid-2017, his father brought a court case against Haris for the outstanding money.  As the applicant helped his father to recoup the money, it is him and not his father who is Haris’ target.

13.  The Board rejected the applicant’s appeal against the Director’s decision as it found significant inconsistencies in his claims.  It concluded that he was not a truthful witness; his claim had been manufactured; and he left Pakistan for unrelated reasons.  It was therefore not satisfied that there were substantial or strong grounds or a real chance or a real risk that he will be sought or harmed by Haris or any other persons upon his return to Pakistan.

14.  In his affirmation in support of his leave application for judicial review, he did not set out any grounds of review except repeating that he was still in risk of harm by Haris.

15.  The Judge properly reviewed the decision of the Board with rigorous examination and anxious scrutiny.  The Judge demonstrated in his consideration that he had applied the relevant legal principles correctly and considered all the relevant issues reasonably and properly.  He did not find any error of law or procedural unfairness in the Board’s decision.

16.  In the present case, the Board’s decision was mainly based on its adverse findings on the credibility of the applicant.  On the evidence before the Board, the findings were plainly open to the Board. Such findings were within province of the Board not to be interfered with, without errors or irrationality or procedural unfairness found by the Judge.

17.  A main complaint in his affirmation dated 17 September 2020 was that the application for judicial review was rejected by the Judge without an oral hearing.  If an applicant desires an oral hearing, this must be requested in Form 86: O 53 r 3(3). The applicant did not request for an oral hearing in his Form 86 or supporting affirmation.  It is entirely proper for the Judge to determine the application without a hearing.  Ignorance of the law is not a valid reason for his complaint.  In any event, he failed to demonstrate how an oral hearing could assist him differently.

18.  Other main complaints relate to the lack of legal representation and language assistance being provided to him.  This is not a ground raised in his Form 86 or affirmation.  Moreover, it is well established that the high standards of fairness do not demand interpretation service or legal representation being made available all the time to a non-refoulement claimant.  It cannot be disputed that such assistances should have been provided to the applicant through the Duty Lawyer Service when the non-refoulement claim form was filled out and during the interview with the immigration officer in the first-tier screening.  The applicant was also assisted by an interpreter in the hearing before the Board.  It is further noted that the application form and affirmation in support as well as the summons and supporting affirmation were written in English.  These indicate that the applicant was being able to access to language assistance and someone familiar with the court process if needed. I do not accept the assertion that the alleged lack of legal/ language assistance would render the process unfair.

19.  The other allegations are just bare assertions without specific particulars or evidence in support.  They cannot be valid grounds of appeal.

20.  The applicant applied to adjourn the hearing to the end of January next year for him to get documents from Pakistan.  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.  The applicant must produce his evidence and documents in support to the Board for its consideration.  Indeed, he already produced many documents to the Board, [32] of the Board’s decision.  At the hearing before me, he failed to specify what documents he still needed to collect and how it would assist his case.  There was no sufficient reason for the court to adjourn the case and the application for adjournment was refused.

21.  Having considered the materials before me, I am of the view that the findings by the Board on the lack of credibility of the applicant, the conclusion of lack of real risk and the Judge’s observations are justified.  I share the Judge’s view that the application for judicial review had no reasonable chance of success.

22.  There is no arguable error in the decision of the Judge.

Conclusion

23.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time, and the summons dated 18 September 2020 taken out by the applicant is dismissed.