RE SARWAR SHAHBAZ

HCAL 2372/2018

[2021] HKCFI 1494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2372 OF 2018

____________________

____________________

______________

D E C I S I O N

______________

Introduction

1.  This is the Applicant’s application by summons dated 17 May 2021 for extension of time to appeal the order of this Court dated 28 April 2021 (the “Order”) refusing his application for leave to apply for judicial review.  He is five days late.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  By 12 May 2021, the time to appeal has expired.  The application for leave to appeal is 5 days out of time.  The breach is not serious.

3.  In Jagg Sing and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (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.

Length of the delay and reasons for delay

4.  The explanation the Applicant gave for the delay is that he has not received the Order.  The ground of appeal given by him is:

“… as I have missed the time to apply in time. Because I no had my Judgment in my mail box. So please give me one more chance …”

The same is repeated in his affirmation filed in support of his application.  Despite the language used, the Applicant is apparently suggesting that the Order reached him late.  He gave no particulars when the Order was received such that he could not have given notice to appeal within time.  The Applicant has no respect to statutory time limits.  His application for leave to apply for judicial review was more than five months late.  Now, his appeal against the Order of this Court is five days late.  The breach is not serious.  The lack of a valid explanation does not weigh heavily against granting extension of time, provided he can show a good ground of appeal.

The Applicant’s case

5.  The Applicant is a Pakistani national.  He entered Hong Kong illegally in August 2009.  He first made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  His claim was rejected by the Director of Immigration (the “Director”) and his appeal was dismissed by the Torture Claims Appeal Board/non Refoulement Claims Petition Office (the “Board”) on 17 June 2013.  That decision is now final. 

6.  The present application is related to the decision of the Board dismissing his appeal against the Director’s decision in his Notice of Further Decision dated 26 June 2017 rejecting his non-refoulement claims based on the remaining three applicable grounds under the Unified Screening Mechanism (the “Decision”); namely BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  The Decision was issued on 23 February 2018. 

7.  It was not until 26 October 2018 that he applied for leave to apply for judicial review of the Decision.  He was more than five months out of time.  His explanation for the delay is that the Decision only reached his residential address while he was in prison custody.  However, this Court found that the explanation is probably not true because based on the information provided by him, he would have been detained on 22 March 2018 which was about a month after the Decision was issued.  Anyway, the Court proceeded to consider the merits of his judicial review.

8.  The Applicant’s case for non-refoulement protection is summarized in paragraphs 14 to 18 of the Form Call-1 dated 28 April 2021.  In gist, he claims he is a supporter of the Pakistan Muslim League (Quaid e Azam Group) (“PMLQ”) and a target of political violence by the opponent political party, Pakistan People’s Party (“PPP”).  He was threatened with death by Abdul and his associates from PPP, if he did not switch allegiance to PPP.  In the end, PPP won the election.  Then, Abdul started to harass the Applicant and his family.  His father was shot in the thigh.  Out of fear for his safety, he fled to Hong Kong.

The Decision of the Board

9.  The Board accepted the Applicant’s evidence, but found that on the basis of his factual case he had not made out a case in respect of the three applicable grounds. Specifically, under the Persecution Risk ground, the Board was not satisfied that the ill-treatment he received or may receive amounted to persecution and for a Convention reason (ie race, religion, nationality, membership of a particular social group or political opinion).  Under the BOR 3 Risk ground, the Board held that the Applicant’s past experiences did not amount to ill-treatment for the purpose of BOR 3 and was not satisfied that there were substantial grounds for believing he would face a genuine and substantial risk of being subjected to severe ill-treatment, if refouled to Pakistan.  For the same reasons, the Board was not satisfied that the Applicant’s rights under BOR 2(1) would be violated, while the other five provisions under BOR 2 are related to sentence of death and genocide which obviously are not engage in the present case.  The reasons of the Board’s finding are summarized in paragraphs 19 to 22 of the Form Call-1.

The decision of this Court now sought to appeal against

10.  The Applicant advanced two grounds of review, namely the Board did not give reasons for its decision and erred in failing to give proper weight to Country of Origin Information (“COI”) in the Applicant’s favour.  The first ground is demonstrably contrary to the objective facts that the Board devoted three pages in its Decision setting out its reasons.  The second ground is an appeal against finding of facts of the Board which is exclusively within the province of the Board.  Besides, as the Decision of the Board was made on the basis that Applicant failed to establish that his fear and risk are genuine, the Board’s finding on the COI is not necessary for its Decision.  The grounds were fully considered in paragraphs 23 to 29 of the Form Call-1.

11.  The application was made out of time by five months and the explanation for the delay was a flimsy one.  Having fully considered the merits, the Court was of the view that the intended judicial review had no prospect of success. It would be a futile exercise to grant extension of time to enable the Applicant to apply for a judicial review which is bound to fail.  Accordingly, this Court dismissed his application for leave to apply for judicial review.

Prospect of the intended appeal

12.  The Applicant has not advanced any ground of appeal.  He only asked for one more chance as if the appeal were a rehearing de novo.  In effect, by applying for judicial review he is seeking to challenge the finding of facts by the Board.

13.  As was held by the Court of Appeal in Nupur Mst v Director of Immigration[5], 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 COI materials and risk of harm, state protection and viability of internal relocation is 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, 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.

14.  The Applicant’s appeal is launched on the wrong basis as an appeal against finding of facts of the Board.  He advanced no argument showing the Board or this Court had erred in law or committed procedural unfairness or that the Decision of the Board or the decision of this Court was Wednesbury unreasonable or irrational.

Prejudice to the respondent

15.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time.  But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. It is an abuse of legal process and would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

16.  In summary, there is no valid explanation for the delay of a week.  That is not necessarily fatal to the application for extension of time.  But the absence of a good ground of appeal is.  It is an abuse of process to challenge a decision without proper and good ground of appeal and which is bound to fail.  To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration.  For all these reasons, the application for extension of time to appeal is refused.