RE TAHIR AMBAR ALI

CACV 354/2018

[2018] HKCA 860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 354 OF 2018

(ON APPEAL FROM HCAL 814/2018)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 20 July 2018 refusing leave to apply for judicial review out of time. The intended judicial review was against the decision of the Director of Immigration dated 24 October 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He first came to Hong Kong in 2009 when he raised a claim with the Immigration Department under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  The applicant withdrew this claim by a letter dated 15 May 2012.  He was repatriated to Pakistan on 24 July 2012 without any decision being made in respect of his claim.

2.   On 23 May 2016, the applicant entered Hong Kong illegally and surrendered to the Immigration Department.  On 11 August 2016, he lodged a fresh non-refoulement claim.  By a letter dated 29 August 2016, the Director requested the applicant to provide further information.  In a letter dated 3 October 2016, the Director repeated the same request and made reference to section 37ZO of the Immigration Ordinance, Cap 115, thus indicating that the claim was being treated as a “subsequent” claim within the meaning of that provision.

3.  In the absence of any response or further information from the applicant, the Director by a Notice of Decision dated 24 October 2016 rejected his claim (“Director’s Decision”).  A removal order was subsequently served on the applicant. 

4.  The applicant’s claim was based on threats from his cousin.  The details of the applicant’s claim have been summarised by the judge at [2] and [6] of the CALL-1 Form.

The deputy judge’s decision

3.   The applicant filed a Form 86 on 27 October 2017, more than 9 months after the Director’s Decision.  The applicant complained that:

(1) the Director had unlawfully fettered his discretions by refusing the his non-refoulement claim on the grounds that they did not satisfy the requirement;

(2) the Director’s Decisions to refuse his claim were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness; and

(3) the Director’s failed to meet the greater care and duty owed to a self-represented claimant.

4.   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 extend time for applying for leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review out of time at [11] to [17] of the CALL-1 form:

“11. It is clear to me that the applicant’s explanation must be the same as that for his failure to provide the Director with further information as to his claim, which is that he never received those letters from the Director notwithstanding his telephone confirmation of his address, which was stated at Room 1, 3/F, 218 Tai Nam Street, Sham Shui Po, Kowloon in the letters from the Director, while in both the applicant’s supporting affirmation and the exhibited copies of letters from him to the Director all show a different address which may go to support his claim of not receiving the Director’s request for further information.

12. However, a close examination of the dates of all those letters from the applicant show that none of them were made during the period of the Director’s letters of requests between August and October 2016, but were instead all dated in 2017 with the earliest one on 13 March 2017.

13. Whilst it is of course possible that the applicant might have in August 2016 already moved to the new address as stated in those letters of his and therefore the Director’s requests sent after August 2016 never reached him, but as noted above after the Director’s first request was returned unclaimed, the second request dated 3 October 2016 was sent out to the same address after confirmation with the applicant on the phone, which goes to show that at least in October 2016 the applicant had still not yet moved to his new address. In any event it is clearly his duty to so inform the Director of any change to his address.

14. Furthermore, and equally significant is the applicant’s admission in paragraph 4 of his affirmation quoted in paragraph 9 above, that he was aware that he should provide further information to the Director, and if it is his complaint that he was not given any extension of time or opportunity to do so, I note that this is not his first application or his first time in Hong Kong, as he was here from 2009 to 2012 for his first torture claim application and should therefore know his way around and more importantly his dealings with the Immigration Department in similar circumstances, and that there was nothing to stop him from submitting further information in support of his claim even afterwards if he so wished.

15. In fact, notwithstanding what he has asserted in his affirmation, even now in his leave application he did not provide any further information in support of his claim as to what political problem and land dispute that he had with his cousin in Pakistan, nor did he do so at the oral hearing of his application when he failed to attend without any explanation. In the circumstances I do not accept his claim to have never received the Director’s requests for further information in support of his case, and hence that cannot be his explanation for his delay with his leave application either.

16. As for my consideration of the merits of his intended application to see if there is other good reason to extend time, I am unable to find any merits or basis in any of his proposed grounds as being just his broad and vague assertions without any particulars or specifics or elaborations as to how they applied to his claim, of which I totally agree with the Director that as it stands it is wholly devoid of any substance or justification for non-refoulement protection.

17. In the premises and for the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason to extend time for him to do so, his leave application is hereby dismissed.”

Grounds for appeal

5.  In the Notice of Appeal dated 31 July 2018 the applicant advanced the following grounds of appeal:

(1) the applicant will face hardship if he is to return to Pakistan;

(2) The Torture Claims Appeal Board (“Board”) relied on source of news which is not officially recognized or simply hearsay.  The Board also relied on cases which are outdated considering the dramatic changes.  The Board made groundless speculations.

6.  On 16 August 2018, the Registrar of Civil Appeals directed that the applicant may file submissions by 3 September 2018 as to why his appeal should not be dismissed for failure first to obtain leave to appeal from the Court of First Instance, having regard to the Court of Appeal’s decision in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, and that this appeal would thereafter be referred to this court for consideration on paper.

7.  The applicant did not file any skeleton submission or document as directed.  We have therefore considered his appeal on the basis of the materials now before us.

Discussion

8.  The judge refused leave to bring judicial review proceedings out of time.  This decision was interlocutory in nature (see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419).  Leave to appeal against it was therefore required pursuant to section 14AA of the High Court Ordinance, Cap 4.  The applicant ought to have sought leave to appeal, initially from the Court of First Instance, before commencing the present appeal, (See Order 59 rule 2B(1) of the Rules of the High Court, Cap. 4A).  The applicant failed to do so, and has failed to provide any justification for not doing so despite the Registrar of Civil Appeals’ directions of 16 August 2018. 

9.  In any event, there is no merit in the appeal.  The judge dealt with the applicant’s reasons for delay at [11] to [13] of the CALL-1 Form, and we agree with his reasons for rejecting the applicant’s explanation for his delay.  For the first ground of appeal based on the alleged hardship the applicant will face upon his return, this ground lacks particulars and is bound to fail.  For the second ground of appeal directed against the Board, the applicant never appealed to the Board[1] and this ground is totally unmeritorious. 

10.  There is therefore no merit in the appeal and leave to appeal should not be given. As there is no leave to appeal, the appeal is not properly constituted and we accordingly order that the Notice of Appeal be struck out and the appeal dismissed.