RE BANGASH SHMAS UR REHMAN

CAMP 314/2019

[2020] HKCA 434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 314 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO.179 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 21 December 2018 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 25 November 2019. The true nature of the application before us is a renewed application for extension of time to appeal against the decision of 21 December 2018.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the Police on 6 May 2007.  He later raised a non-refoulement claim based on his fear of being harmed or killed by a member of the political party Tehrik-e-Istiqlal. 

5.  Between 2008 and 2016, the applicant had on several occasions asked to withdraw or cancel his claim followed by requests to re-open his claim.  The Judge has provided a chronology of events relating to the process of the applicant’s claim in Form CALL-1 dated 21 December 2018 at [2][1]. It is not necessary to repeat them here.

6.  The applicant’s last request to re-open his claim was made on 25 April 2016, after the Director of Immigration (“the Director”) informed him by writing on 9 March 2016 that due to his failure to complete his Non-refoulement Claim Form (“NCF”), his claim was treated as having been withdrawn.  This was the second time the Director treated the applicant’s claim as withdrawn following a prolonged failure to complete his NCF.

7.  On this occasion, the Director required the applicant to provide sufficient evidence by 11 May 2016 to show that his failure to return his NCF was due to circumstances beyond his control.  The applicant provided his explanations in four letters sent in May 2016.         

8.  By his decision dated 23 June 2016, the Director refused to allow the applicant to re-open his claim.  because the applicant had failed to provide sufficient evidence.  Principally, the Director found that the applicant failed to provide sufficient evidence to show that his failure to return the NCF was due to circumstances beyond his control.

9.  On 6 January 2017, the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”).  The appeal was late by nearly six months.  The Board accepted the late filing of the appeal, and proceeded to deal with the appeal without an oral hearing.  By its decision dated 5 January 2018, the Board dismissed the appeal.  The Board considered that the reasons for the delay given by the applicant, taken individually or collectively, was not sufficient to show that the failure to complete his NCF was due to circumstances beyond his control. 

10.  On 7 February 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  An oral hearing was held on 4 September 2018.  By the Form CALL-1 dated 21 December 2018, the Judge refused to grant leave to apply for judicial review and dismissed the application.  

11.  The 14-day period[2] for the applicant to appeal the decision of the Judge expired on 4 January 2019.  It was not until 13 September 2019 did the applicant file a summons together with an affirmation to apply for leave to appeal out of time.  The Judge heard the application on 30 October 2019. By his decision handed down on 25 November 2019, the Judge dismissed the application.  On 20 December 2019, the applicant filed the present summons and an affirmation in this Court to renew his application.

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

13.  The applicant was more than nine months late.  This is a serious delay.  The applicant explained in his affirmation that he was detained at Lai Chi Kok Reception Centre and later at Castle Peak Bay Immigration Centre and was unable to file an appeal.  While we accept some delay might be caused by the fact that the applicant was in custody, we are unable to accept the very substantial delay in the absence of specific explanation.  However, what is more important is the prospect of the applicant’s intended appeal.

14.  In the Form 86, the applicant put forward the following grounds for seeking relief:

(1)  The Board failed to observe the high standards of fairness or meet the Wednesbury test. He was not legally represented with no knowledge of the procedure, and was under a lot of mental stress during his detention.

(2)  The Board failed to take into consideration the difficulties faced by the applicant in reading and understanding English.

(3)  The Board failed to make sufficient enquiry before finalising the decision without a hearing.

(4)  The Board failed to consider that the applicant was in the course of obtaining relevant evidence from his home country, and went ahead to decide on the appeal, without giving him sufficient time to submit evidence.

15.  The Judge’s reasons for refusing to give leave to apply for judicial review are set out in [10] to [14] of the Form CALL-1 as follows:

“10. As he explained in paragraphs 68 – 71 of his decision the adjudicator considered those explanations provided by the applicant properly and carefully and arrived at the same conclusion as the Director that the applicant failed to adduce sufficient evidence in writing to show that there were circumstances beyond his control that led to his failure to return his completed NCF within time. In my judgment the adjudicator was entitled to do so on the evidence available and in the circumstances of the applicant’s case.

11. Against this the applicant has now put forward grounds which are just broad and vague assertions with a few key words and phrases but without any particulars or substance or elaboration as to how the adjudicator had erred in his decision, or what further enquiry that he should make before finalizing his decision, or what further evidence that he had intended to obtain from his home country, and despite back in May 2016 when he proposed to the Director for a further two months for him to obtain further evidence from his home country in support of his claim, even now he did not do so in his application before me after more than two years later, other than the claim that he had liver problem which he hoped to receive treatment here in Hong Kong.

12. In the premises and having proceeded to consider 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 consideration and assessment of the applicant’s claim.

13. In fact, given the history of the manners in which the applicant had proceeded with his claim as set out in the chronology above, of which both the Director and the adjudicator were perfectly entitled to take into account in their determination not to allow the applicant to re-open his claim, and in the circumstances there is no question in my judgment that the applicant had indeed been accorded with high standards of fairness throughout all the years.

14.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

16.  In the present application, the applicant did not set out any ground of appeal in the summons and affirmation. 

17.  In his written submission, the applicant argued that: (1) high standards of fairness are required considering that his life is in jeopardy, his fundamental right not to be subjected to torture is at stake, and the decision has the effect of finally disposing of his claim rendering him liable to be removed; (2) the Board acted in a procedurally unfair manner in dealing with his case and did not properly assess his credibility; (3) an administrative body’s decision could be set aside if it is Wednesbury unreasonable; and (4) under section 37ZT of the Immigration Ordinance, Cap. 115, the Board in dealing with late filing of notice of appeal may consider the reasons stated in the application and the accompanying supporting documents, as well as any other relevant matters.  

18.  For the reasons set out below, we are of the view that the applicant’s intended appeal against the Judge’s decision has no prospect of success.

19.  The issue before the Judge is whether there are public law grounds to disturb the Board’s conclusion that the applicant failed to adduce sufficient evidence to show that his failure to complete the NCF was due to circumstances beyond his control.  The Judge concluded that there was no proper basis to disturb the Board’s decision.  In an appeal to the Court of Appeal against the refusal of leave to apply for judicial review, the focus is on the correctness of the decision of the judge below.  In the present application, the applicant has not identified any error in the Judge’s conclusion and the reasoning he gave (see [15] above).

20.  The arguments advanced in the written submission are general legal propositions and assertions.  It has not been show how these legal propositions relate to the applicant’s case.  Further, the 2^nd argument is irrelevant.  The Board had not made any assessment of the applicant’s credibility, and did not dismiss the appeal on account of an adverse finding of credibility.  Likewise, the 4^th argument is also misplaced.  Although the appeal to the Board was late, the Board had accepted the delay and allowed the appeal to proceed.  There are, in short, no merits in the arguments raised in the written submission.          

21.  The applicant has failed to show there is proper basis to interfere with the Judge’s refusal of leave to apply for judicial review.  The intended appeal is unarguable.  This being the case, it would be futile to grant extension of time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 20 December 2019.