RE AMZ

CAMP 72/2018

[2018] HKCA 553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 72 OF 2018

(ON APPEAL FROM HCAL 607/2017)

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J U D G M E N T

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

1.  By a summons filed by the applicant on 24 May 2018, the applicant seeks an extension of time to appeal against the decision of Deputy High Court Judge Marlene Ng given on 3 April 2018 refusing him leave to apply for judicial review. The intended judicial review was against the decisions of the Director of Immigration dated 15 April 2016 and 29 December 2016 rejecting the applicant’s non-refoulement claim, and the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 26 September 2016 dismissing the applicant’s appeal against the first decision of the director.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 3 July 2014 illegally and was later arrested by the police on 4 July 2014.  After his arrest, he lodged a non-refoulement claim on 12 August 2014. 

3.  The applicant’s claim was based on the threat from members of the Pakistan Muslim League-Q party (PMLQ). According to the applicant, his father, who was a chief supporter of Pakistan Muslim League‑N party (PMLN), was deemed responsible for the death of a PMLQ member. In 2012, the applicant, who was also a PMLN supporter, was abducted and attacked by members of the PMLQ in an effort to obtain his father’s location.  In 2013, the applicant’s father was attacked and sustained serious injuries and became wheelchair-bound.  Thereafter, he decided to flee to Hong Kong.

4.  By a Notice of Decision dated 15 April 2016 (“the Director’s First Decision”), the director decided against the applicant’s claim.  The director’s decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 29 December 2016, the director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him (“the Further Decision”).

6.  The applicant appealed to the Torture Claims Appeal Board against the Director’s First Decision.  As the applicant was late in filing the Notice of Appeal/Petition, the Board had to decide under section 37ZT(2) of the Immigration Ordinance, Cap 115 whether to allow the late filing of the notice.

7.  After considering the applicant’s explanation for the delay, the Board held that the delay was inexcusable and refused to allow the late filing of the notice.  The Board further considered, without a hearing, the merits of the applicant’s case.  The Board held that even if the Board allowed the late filing of the notice, the applicant would not be able to establish his claim on any of the applicable grounds. 

8.  At [15] the Board found that the applicant’s case was vague and unsupported by any independent evidence.  At [21] it took the view that PMLQ members no longer had any reason to continue to find and harass the applicant.  Furthermore, at [15] it held that the PMLQ members acted in their personal and private capacity without the involvement of the state.  The board was also satisfied at [26] that state protection was available for the applicant and at [21] that internal relocation was viable. Accordingly, the applicant’s appeal was dismissed (“the Board’s Decision).

The deputy judge’s decision

9.  The applicant filed a form 86 on 11 September 2017 which was about 1 year after the Board’s Decision and 9 months after the Further Decision.  The form 86 contained no ground for seeking relief. 

10.  In the affirmation in support of the leave application dated 11 September 2017, the applicant advanced the sole ground for judicial review “I want to fight them in my right, please see my exhibit”.  The exhibits to his affirmation consisted only of the Board’s Decision and the Director’s First Decision.

11.  The applicant did not request an oral hearing before the judge.  The judge decided to deal with the application on paper.

12.  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 at paragraphs 41 to 56 of the CALL-1 form:

(1) the delay is not insignificant;

(2) there was no good reason to account for the delay;

(3) the applicant did not advance any viable ground in the Form 86 or his supporting affirmation; and

(4) there was no question of general public interest or importance in the present case.

13.  According to the court record, a copy of the CALL-1 form and the sealed of the deputy judge’s order were sent to the applicant on 3 April 2018.

Application for extension of time to appeal and grounds for appeal

14.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 24 May 2018, he applied for an extension of time to appeal.  His explanation for the delay is that he tried to check his mail daily but he could not find any mail.  He was only informed of the decision in the CALL-1 form on 22 May 2018 when it was already out of time.  His application for extension of time is supported by an affirmation dated 24 May 2018 where he listed out 14 grounds of appeal.

15.  None of the 14 grounds of appeal had been raised in the Form 86 or its supporting affirmation.  All 14 grounds of appeal are very general and lack particulars. 

16.  In his affirmation, he also attached a 20-page grounds for application, in which several Hong Kong and UK cases, the HKBORO, the Immigration Ordinance and various Internet links to “Pakistan news” were cited.  The applicant did not, however, formulate any coherent argument or identify any error committed by the deputy judge in refusing him leave to apply for judicial review.

17.  Because the applicant failed to comply with the directions and the unless order made respectively by the Registrar of Civil Appeals on 25 May 2018 and 25 June 2018, the court ordered on 15 August 2018 that he shall be debarred from lodging any written submission and the application would be dealt with on paper on the basis of the materials already filed before the court.

General principles

18.  Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at [14]-[15]:

“14. …

(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 the 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: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(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 were 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: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) 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). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.

15. 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.”

19.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if there are merits 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.  The crucial question as to the merits of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the court to reverse the decision of the judge.

Discussion

20.  Applying the general principles identified earlier in this judgment, we would not allow the applicant to rely on any of the 14 grounds of appeal raised in his affirmation dated 24 May 2018 because all 14 grounds of appeal are only raised at the appeal stage.

21.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  He has not explained how it was that he failed to receive the letter enclosing the CALL-1 Form despite his alleged attempt to check his mail daily.  Further, he did not explain how he eventually came to know about the deputy judge’s decision.

22.  Turning to the merits of the intended appeal, having read the materials available to us, we are satisfied that the deputy judge’s observations are justified in light of the grounds raised and the materials before her.  The only ground for judicial review before the deputy judge was the applicant’s desire to fight “them” (whoever that may be) in his right.  This is no proper ground for judicial review at all.  Further, there was serious and inexcusable delay in applying for leave for judicial review and there was no good reason to extend time.

23.  For these reasons, we do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 24 May 2018 is dismissed accordingly.

24.  We are of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.