RE HASSAN ALI

CAMP 256/2019

[2020] HKCA 477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 256 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1677 OF 2018)

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J U D G M E N T

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

Introduction

1.  By a summons dated 4 October 2019 and filed on 14 October 2019, the applicant applied for leave to appeal out of time against the decision given by Deputy High Court Judge Woodcock (“the Judge”) on 4 October 2019 refusing to extend time for the applicant to apply for judicial review.  We believe this was an error and the applicant was in fact seeking an extension of time to appeal the Judge’s decision of 24 June 2019 refusing him leave to apply for judicial review.  We have therefore treated the application as such and proceeded to consider it.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 6 August 2018, in which the Board confirmed the decision made by the Director of Immigration (“the Director”) dated 25 September 2017.  By the Decision of the Judge on 24 June 2019 (“the Decision”), the applicant’s application for leave for judicial review against the Board’s decision was dismissed. 

3.  Pursuant to the directions of the Registrar of Civil Appeals given on 15 October 2019, the applicant lodged his written submissions on 31 October 2019. 

4.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of Pakistan.  He entered Hong Kong by boat illegally on 29 April 2016 and surrendered to the Immigration Department on 4 May 2016.  On 15 June 2016, he lodged his non-refoulement claim by way of a written representation on the basis that if he were to return to Pakistan, he would be harmed or even killed by members of the Pakistan Muslim League – Nawaz (“PML(N)”) because of his political affiliation with the Pakistan Peoples Party (“PPP”) and his refusal to join the PML(N).

6.  By a Notice of Decision dated 25 September 2017, the Director decided against the applicant’s claim on BOR 2 risk, BOR 3 risk, the persecution risk, and the torture risk. 

7.  The applicant appealed to the Board.  After the hearing on 16 May 2018, the Board dismissed the appeal on 6 August 2018.  For the reasons and analysis stated in [67] to [96] of the Board’s decision, it found significant inconsistencies in the applicant’s evidence that reflected adversely on his credibility and reliability.  The Board did not accept that the applicant was a member of PPP or that he was beaten or threatened with death in Pakistan.  The Board took the view that the applicant had fabricated his claim in order to seek non-refoulement protection and to extend his stay in Hong Kong.  Having considered the relevant COI, the Board found that the applicant would not be at risk of any harm if he returned to his home country. For the aforesaid reasons, his case was rejected on all applicable grounds.

8.  On 20 August 2018, the applicant filed a Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decision but he did not provide any ground for his intended challenge.

The Judge’s Decision

9.  The applicant did not request an oral hearing and the Judge considered his application on paper.  By the Decision dated 24 June 2019, the Judge refused leave for the applicant to apply for judicial review after due consideration of the Board’s decision. The reasons were duly set out at [10] to [11] of the Decision:

“10. Even though there are no grounds relied on by the applicant, I did examine and scrutinized the adjudicator’s decision to ascertain whether she made any errors of law and whether she analyzed the appeal/petition with a high standard of fairness as is required. I considered whether the application of the enhanced Wednesbury test was satisfied.

11. I found no failings on the part of the adjudicator.  I found no errors of law nor any evidence of procedural unfairness.  She did not fail to adhere to a high standard of fairness.  There is no realistic prospect of success and I refuse leave to apply for judicial review.”

10.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appeal (which expired on 8 July 2019).   By the summons filed on 26 July 2019, he sought an extension of time to appeal against the Decision.  In the summons and the supporting affirmation, he did not provide any draft or proposed grounds to support his intended appeal.  He merely gave a brief explanation that since he is not a Hong Kong citizen, he did not know the law and procedure and he also did not have any friend who can help him that caused the delay. 

11.  By the decision dated 4 October 2019, the Judge refused to grant an extension of time as she did not accept that ignorance of the law and legal procedure in filing the appeal were good reasons for the delay.  Further, the applicant’s oral submission at the hearing indicated that he knew of the Decision before the deadline to file an appeal expired.  More importantly, the Judge found no merit in the applicant’s case as he failed to provide any ground of appeal.  In any event, the Judge did not find any error of law of procedural unfairness upon her due examination of the Board’s decision.  The Judge was not satisfied that there was any real prospect of success in the applicant’s intended appeal and therefore she dismissed the summons accordingly.

The Renew Application

12.  By the summons filed on 14 October 2019, the applicant renewed the matter before us.  In his supporting affirmation, he said that he did not receive the court order and he was only informed by the Immigration Department that his case was over.  He did not deliberately miss the deadline and it was only until he obtained assistance from a non-government organization that he knew about the procedure.

13.  In his written submissions, he set out the following grounds of appeal:

(1)  His case was caused by political problem and the problem has not been resolved.  Regional conflicts are still serious in his home town and other parts of Pakistan.

(2)  Pakistan has been a country fraught with human rights issues and its police and administration are corrupt and ineffective. According to Amnesty International human rights report on Pakistan, the Pakistani government has failed to protect its people from violence and abuses of human rights.  It also failed to ensure legal redress and still imposed death penalty.

(3)  The Board, when considering the COI as stated in its decision, did not understand the cultural context in Pakistan.  In fact, Pakistani security forces remained unaccountable to its people, they violated human rights and exercised disproportionate political influence over civilian authorities.  The Pakistani parliament passed a constitutional amendment in March reinstating secret military courts to try terrorism suspects for another two years.  Security forces were implicated in enforced disappearances and extrajudicial killings throughout the country.

(4)  In a heavily communal Muslim country, it is easy to locate a person and get him killed if one is determined to do so.

(5)  The Director failed to consider the factors in local contexts and did not understand the intricacies of the situation in Pakistan.

14.  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 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 the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15.  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. 

16.  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].  For the purpose of this application, the salient principles 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 or for running arguments which could and should have been raised but not raised before 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)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

17.  We are of the view that notwithstanding that the delay of 18 days is not substantial, we agree with the Judge that ignorance of law and legal procedure are not good reasons for the delay.

18.  Therefore, the applicant must satisfy the Court that the intended appeal has a real prospect of success before extension of time will be granted: see Re Ansar Muhammad [2018] HKCA 227.  

19.  We found no merit in the applicant’s case as none of the grounds of appeal as set out in his supporting affirmation and written submissions pinpoints any error of law of the Judge’s decisions and thus they are not viable grounds of appeal.  In any event, we have carefully reviewed the Board’s decision and found no error of law or procedural unfairness or irregularities that would justify interference of this Court.  

20.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal. 

Conclusion

21.  The summons dated 4 October 2019 is dismissed accordingly.

22.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.