RE ALI LIAQAT

CAMP 355/2022, [2024] HKCA 714

On Appeal From [2022] HKCFI 927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 355 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2852 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving the Judgment of the Court):

1.  By a summons filed on 19 September 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge To (“the Deputy Judge”)  dated 31 March 2022 refusing to grant extension of time and dismissing his application for leave to apply for judicial review ([2022] HKCFI 927)  (“the Leave Decision”).  Later, by a decision dated 2 September 2022, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 2683)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 30 March 2017 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 11 December 2014 rejecting his request to re-open his non-refoulement claim (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 7 August 2009 and was arrested by the police on the same day.  On 9 August 2009, he was referred to the Immigration Department.  On 10 August 2009, he lodged a torture claim on the basis that if refouled, he would be harmed or killed by Billa, his cousin who was also a leader of a gang in Pakistan, because the applicant refused to transfer his share of a piece of land to Billa.  He later withdrew his application via a letter dated 23 November 2009.  Factual details and procedural history of the applicant’s claim were summarised by the Deputy Judge at [5] - [14] of the Leave Decision.

5.  Subsequent to his first withdrawal and by letters dated 29 January 2010 and 29 April 2010, the applicant applied to continue his torture claim. With the commencement of the unified screening mechanism on 3 March 2014, his torture claim was taken to be a non-refoulement claim which was later withdrawn again via a letter dated 17 April 2014.

6.  On 22 August 2014, the applicant wrote to the Director to re-open his non-refoulement claim.  The Director wrote to the applicant on 19 November 2014 that his claim might be re-opened if he could provide sufficient evidence and information to justify it in writing on or before 3 December 2014.

7.  As the applicant failed to give any response to the Director’s request for evidence and information by the stipulated time, the Director by the Director’s Decision refused to re-open the applicant’s claim.

8.  The applicant then appealed against the Director’s Decision to the Board.  He attended an oral hearing before the Board on 23 September 2016. The Board dismissed his appeal on 30 March 2017 and confirmed the Director’s Decision.  Upon further enquiries with the applicant, the Board rejected the applicant’s assertion that he did not receive the letter from the Director dated 19 November 2014 requesting for information.  The Board found that there was no change of circumstances since the withdrawal of the applicant’s non-refoulement claim.  Based on the existing circumstances of the applicant’s claim, the Board considered that although Billa had ample opportunity to kill or seriously harm him, the applicant had not been harmed seriously or killed and also that the applicant would not face any real risk of harm in the future. The Board found that there was no special circumstances in his case pursuant to section 37ZE(2)(b)  of the Immigration Ordinance, Cap 115 to show that it would be unjust not to re-open his claim.  Accordingly, the Board dismissed his appeal.

9.  By written representations dated 10 July 2017, 8 August 2017 and 16 August 2017, the applicant requested the Director to make a subsequent claim as he still had problem in his home country.  He also claimed that he intended to submit additional evidence in support, but eventually he failed to do so. 

10.  By a Notice of Decision dated 29 December 2017 (“the Director’s Further Decision”), the Director refused to allow the applicant to make a subsequent claim.  The Director considered that the applicant failed to provide sufficient evidence in writing to satisfy an immigration officer that there had been a significant change of circumstances since his previous claim determined.  The Director further considered that even if assuming there had been a significant change of circumstances as alleged in those written representations, such change when taken together with the materials previously submitted in support of his previous claim would not give his subsequent claim any realistic prospect of success.  The Director nevertheless proceeded to assess the applicant’s non-refoulement claim based on the new information provided in the written representations and the information previously submitted in support of his previous claim, and rejected his claim on all applicant grounds including BOR2 risk[1], BOR3 risk[2], persecution risk[3] and torture risk[4].  The applicant did not lodge any appeal against the Director’s Further Decision to the Board.

The Leave Decision

11.  On 12 December 2018, the applicant filed a Form 86 together with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  By then, he was nearly 18 months late in taking out his application.  No ground of review was provided in his Form 86.  In his supporting affirmation, he only stated that he would like to seek judicial review of the Board’s Decision.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

12.  By the Leave Decision, the Deputy Judge refused to extend time for the applicant to apply for leave to apply for judicial review and also refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [20] - [27] of the Leave Decision:

“20.As explained above, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. Absence any specific grounds for the application, the court will focus on the usual challenges of an administrative decision, ie errors of law, procedural unfairness or irrationality.

21. Having rigorously examined the Director’s 2014 Notice, the NOA, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to an application to re-open a claim pursuant to section 37ZE(2). The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claim. The Decision of the Board was based on the Applicant’s failure to adduce evidence of change of circumstances since the withdrawal of his claim. That is incontrovertible. The Board reminded itself of the duty to attain a high standard of fairness. It gave the Applicant a second opportunity to produce evidence of change of circumstances and assessed his non-refoulement claim on the basis of his case as asserted to determine whether it would be unfair not to allow him to re-open his case. It was on that basis that the Board was satisfied that he is not entitled to and hence dismissed his appeal against the Notice. The Decision of the Board is unreproachable. The Applicant’s intended judicial review has no prospect of success.

Merits of the application to apply for judicial review out of time

22. Order 53, rule 4(1)  of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. An application made after three months is deemed to have been made with undue delay. To obtain extension of time for making an application, the applicant has to satisfy the court that there are credible valid explanations for the delay.

23. In AW and Director of Immigration and William Lam[5], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(1)  length of delay;

(2)  explanation for the delay;

(3)  merits of the substantive application;

(4)  prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5)  whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

24. By the time the Applicant filed his application, it was more than twenty months after the Decision was made. Even if an application was made at that time, it was more than seventeen months out of time. The delay is very substantial.

25. The Applicant did not give any explanation for the delay. The Court could have invited him to give an explanation. For obvious reason, this is going to be a futile exercise and is unnecessary.

26. For reasons as explained in the sections above, there is no prospect of success in the intended application for judicial review. It must necessarily follow that the Applicant will suffer no prejudice if extension of time is not granted. If granted, the proposed respondent will suffer prejudice having to incur costs and time to resist an application which is doomed to fail. On the other hand, the access to court by other non-refoulement claimants will be delayed. Besides, the application does not raise any question of general public importance. Hence, leave to apply out of time will not be granted.

Conclusion

27.  As the Applicant’s application was filed out of time and leave will not be granted for him to do so, his application for leave to apply for judicial review is refused.”

The EOT Decision

13.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

14.  On 13 July 2022, the applicant filed a summons (“EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was nearly three months late with his intended appeal.  In his supporting affirmation, the applicant contended that he did not receive the Leave Decision from the High Court.

15.  As the explanation for the delay given by the applicant in his supporting affirmation were mere assertions without any corroboration or independent evidence in support, the Deputy Judge directed him by letter dated 1 August 2022 to file a statement by 15 August 2012 setting out, among other things, details relating to his receipt of the Leave Decision, all his residential addresses since 31 March 2022 and grounds of the proposed appeal. He was also advised that his EOT Summons would be determined on paper after 14 days of the directions, regardless of whether the directions given had been complied with.

16.  By a statement lodged by the applicant with the court on 8 August 2022, the applicant merely explained that he was informed of the Leave Decision by an immigration officer on his routine reporting on 11 July 2022. 

17.  By the EOT Decision, the Deputy Judge did not accept that the applicant had a valid explanation for his substantial delay.  As the applicant had no arguable grounds of appeal and his intended appeal has no prospect of success, the Deputy Judge refused his application for extension of time to appeal.

The present application

18.  By a summons and a supporting affirmation both filed on 19 September 2022, the applicant reapplied to this Court for extension of time to appeal against the Leave Decision.  In his summons and supporting affirmation, the applicant claimed that he did not receive any decision and the High Court did not give him the chance to appeal.  The applicant also contended that he disagreed with the Deputy Judge’s decisions.

19.  Pursuant to the directions made by the Registrar of Civil Appeals on 19 September 2022, the applicant lodged his written submissions on 3 October 2022.  In those submissions, the applicant stated that his life is still under threat in his home country and his enemy were very powerful, influential and rich.  He also stated his non-refoulement claim was rejected by the Director and the Board and his application for leave to apply for judicial review was refused by the High Court.  He then asserted that there were many errors during the processing of his claim, but did not give any specific particulars or elaboration in support.

Discussion

20.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

21.  We consider that the applicant’s delay of nearly three months as substantial and we agree with the Deputy Judge that the applicant had failed to give any good reason for his delay.  Although he claimed that he did not receive any letter from the court, he failed to provide any specific particulars or evidence in support.  The court records show that the Leave Decision was sent on 31 March 2022 to the applicant at his reported address in Mong Kok provided in his Form 86 and the EOT Decision was sent to him at his reported address in Yuen Long on 2 September 2022 provided in the EOT Summons and both were not returned through undelivered post.  We stress that it is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].

22.  As such, this Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

23.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

24.  The applicant’s appeal is clearly without merit. Although he disagreed with the Leave Decision, nowhere in his summons, supporting affirmation or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Accordingly, there is no proper ground of appeal and clearly no basis to disturb the Leave Decision.

25.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 19 September 2022 is dismissed.