RE ASLAM MIAN MUHAMMAD

CAMP 238/2019

[2020] HKCA 475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 238 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 105 OF 2018)

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J U D G M E N T

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

INTRODUCTION

1.  By a decision as set out in Form CALL-1 dated 3 September 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 1992, Deputy High Court Judge Josiah Lam (“the Deputy Judge”) refused to grant extension of time to the applicant to apply for judicial review.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board (“the Board”) dated 17 February 2017 (“the Board’s Decision”) dismissing the applicant’s appeals against the decisions of the Director of Immigration (“the Director”) dated 7 December 2015 (“the Director’s First Decision”) and 1 November 2016 (“the Director’s Second Decision”).

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  The applicant issued a summons on 17 September 2018 before the Deputy Judge seeking leave to appeal the Deputy Judge’s Decision to the Court of Appeal.  On 17 September 2019, the Deputy Judge refused to grant leave to the applicant (“the Deputy Judge’s Leave Decision”) [2019] HKCFI 2101.

5.  By a summons dated 27 September 2019 (“the Summons”), the applicant renewed his application for leave to appeal before this Court.  Pursuant to the directions of the Registrar of Civil Appeal given on 30 September 2019, the applicant lodged his written submissions on 16 October 2019. 

6.  Having considered the Summons, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court (Cap 4A).  This is our judgment.

BACKGROUND

7.  The applicant is a national of Pakistan.  He had entered Hong Kong multiple times in the past using different identification documents and names since 1992.  He last entered Hong Kong on 21 April 2013 on the strength of a British passport under the name of Aslam Mian Muhammad.  He departed Hong Kong on 17 October 2013 for Korea, but was deported back to Hong Kong for holding a false British passport.  He was refused permission to land in Hong Kong.  On 24 October 2013, he lodged a torture claim which was later withdrawn.  By a letter dated 27 October 2013, he lodged an application for “the C.I.D.P.T” which was treated as a non-refoulement claim after the implementation of unified screening mechanism on 3 March 2014.

8.  The details of the applicant’s claim and his personal background were set out in paragraphs 5 - 6 of the Director’s First Decision, and paragraphs 3 - 4 of the Board’s Decision.

9.  Briefly stated, the applicant claimed that if he was to return to Pakistan, he would be harmed or killed by Karamdad Wala (“Wala”), Bashir Ahmed (“Ahmed”), and Khadam Hussain Dhilu (“Dhilu”) and others because he refused to join the Pakistan Muslim League-N (“PMLN”).  He said that he had been a supporter for Pakistan People’s Party (“PPP”) since 2008 and was in charge of organizing rallies, putting up posters and securing votes for PPP.  Wala and Ahmed asked him to join the PMLN but he refused. Ahmed then threatened framing him with false cases, and Dhilu also threatened to kill him. The applicant also claimed that he was attacked by Ahmed and others and sustained injuries.  He reported the attack to the Jahanian City Police Station (“JCPS”) but no action was taken.  Around one month after the first attack, he was abducted by Dhilu and again assaulted.  He also reported the second attack to the JCPS but an assistant sub-inspector refused to help him because the police were under the influence of PMLN.  He further claimed that Ahmed once opened fire at his house damaging his walls and gate.  Out of fear, he fled to Hong Kong. 

THE DIRECTOR’S DECISIONS AND THE BOARD’S DECISION

10.  By the Director’s Decisions, the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The Director’s Second Decision assessed the BOR 2 risk^[4].

11.  The applicant appealed the Director’s Decisions to the Board.  The Board heard his appeal on 20 January 2017, during which the applicant chose not to answer questions from the Board.  The Board first considered that the applicant only raised his claim after he was deported back from Korea.  He did not do so when he had ample opportunities to do that in the past.  The Board also found that it was illogical or without common sense for the PMLN to spend manpower and resources all over Pakistan to hunt down the applicant who was merely a supporter of PPP.  Moreover, the applicant entered Hong Kong with false identities and overstayed, which showed that he was dishonest.  All the above considered together, the Board found that the applicant was not credible and dismissed his claim (paragraphs 6 to 13 of the Board’s Decision).  Further, it found that, even on the applicant’s version of events, he failed to satisfy the legal elements of his claim.  In any event, internal relocation was available to the applicant (paragraphs 14 to 40 of the Board’s Decision).

THE DEPUTY JUDGE’S DECISION

12.  On 22 January 2018, after more than 11 months, the applicant filed his Form 86 for leave to apply for judicial review against the Board’s Decision.  As noted by the Deputy Judge, it was more than eight months outside the statutory time limit prescribed by Order 53 rule 4 of the Rules of the High Court. 

13.  The Deputy Judge refused to accept the applicant’s explanation for the delay and also found that the applicant’s leave application had no merits.  Thus, he refused to grant extension of time to the applicant and explained his reasons at paragraphs 37 to 51 of the Deputy Judge’s Decision:

“Discussion

37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

38. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

Late application for leave for judicial review

39. Order 53, rule 4 of the Rules of the High Court states: –

(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.

40. The Adjudicator rendered his decision on 17 February 2017. The Applicant should apply for leave for judicial review within three months from that date. However, he only filed the current application eleven months later on 22 January 2018. Given there was a grace period of three months for the filing, the application was in fact late by more than 8 months.

Legal principles of extending time

41. In AW v Director of Immigration, the Court of Appeal stated: -

23. There are two relevant statutory provisions: Order 53 rule 4(1) and section 21K (6) of the High Court Ordinance, Cap 4.

24. Order 53 rule 4(1) is in these terms:

‘An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.’

25. Section 21K (6) provides as follows:

‘Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant –

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.’

26. The relationship between these provisions was explained by Ackner LJ in R v Stratford-on-Avon District Council, ex p Jackson [1985] 1 WLR 1319 at 1325F to G and approved of by Lord Goff of Chieveley in R v Dairy Tribunal, ex p Caswell [1990] 2 AC 738 at 746G. Whenever there is a failure to act promptly or within three months, there is “undue delay”. Even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains “undue delay”. The court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

27. In Re Thomas Lai [2014] 6 HKC 1, G Lam J considered the relevant authorities and stated the principles to be applied in an application to extend time for judicial review in §§43 to 45. I take the following summary of these principles from the submission of Ms Sara Tong, who appeared for the Director:

(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K (6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) 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:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the 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.

(v) Questions of general public importance: 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.

The list of factors is not exhaustive; the consideration is ‘multi-faceted’; the overriding principle is one of fairness.

42. While the provisions of Order 53 rule 4(1) and section 21K (6) should not be applied in a technical manner, a disciplined approach to applications for judicial review out of time ought to be taken otherwise public administration may be thrown into chaos and uncertainty. The Applicant explained he did not know the time limit and that he had waited for his problem in Pakistan to settle were no good excuses. The delay by more than 8 months (already excluding the three-month grace period for filing) was undue and substantial. There was no justification. There were also no merits in the Applicant's application (see paras 43-51 below). His late application for leave for judicial review should not be allowed.

Merits

43. The Applicant complained the Director only served the appeal bundle on him around 13 January 2017. Most of the documents were in English. He did not have sufficient time to find an interpreter to assist him to deal with the documents. He was thus confused of what was happening.

44. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

45. In the present case, the Director served the appeal bundle on the Applicant 7 calendar days (or 6 working days) prior to the appeal hearing. The papers were served on the Applicant in time.

46. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening. The Applicant's case was not complicated. There was no evidence to show the appeal bundle was difficult or voluminous.

47. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal.

48. In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application for leave for judicial review. I am sure he had access to language assistance at all material times. The Applicant had exaggerated his problem of understanding and handling English documents.

49. The Applicant complained in court that he had told the Adjudicator and the Director he needed time to get certain proofs. There is really no evidence of such application. The Applicant only vaguely told this court those proofs were some medical records and related documents. He failed to explain why he could not have got hold of those documents in the several years’ time after he had lodged his non-refoulement claim as early as October 2013.

50. There are other vague complaints made by the Applicant. I have reviewed the Adjudicator's decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who had engaged in proper joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed that he was acquainted with the facts and the law. He had considered the Applicant's case carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

51. The Applicant’s complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

EXTENSION OF TIME IN THE COURT BELOW

14.  The applicant first sought leave before the Deputy Judge on 17 September 2018.  After hearing the applicant on 28 September 2018, by way of the Deputy Judge’s Leave Decision, the Deputy Judge refused to grant leave to the applicant to appeal the Deputy Judge’s Decision on the basis that the applicant failed to provide any viable grounds to challenge the Deputy Judge’s Decision and thus his intended appeal had no reasonable prospect of success. 

RENEWED APPLICATION FOR LEAVE TO APPEAL

15.  By way of the Summons, the applicant renewed his application to this Court.  In both the Summons and his supporting affirmation filed on the same date, the applicant stated that he would like to seek extension of time to appeal the Deputy Judge’s Decision because the Deputy Judge’s Decision was “lost in post”.  This purported explanation however has no relevancy as to why he was eight months late in applying for leave to judicially review the Board’s Decision.

16.  In his written submissions, he quoted passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submission further referred to section 37ZT of the Immigration Ordinance, Cap 115, and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.  However, the applicant did not further elaborate how the section could assist his case.

LEGAL PRINCIPLES

17.  In Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, it was held that the refusal to extend time for leave to apply for judicial review is interlocutory in nature.

18.  Section 14AA of the High Court Ordinance (Cap 4) states that leave is required before an appeal can be brought against an interlocutory decision.  Section 14AA(4) further provides that no leave to appeal shall be granted unless the court is satisfied that there is a reasonable prospect of success in the intended appeal, or that there is some other reason in the interests of justice that the intended appeal should be heard.

19.  In assessing the prospect of success 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 discussed in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

20.  For the purpose of this application, we only need to highlight the following principles:

(1)     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.

(2)     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

21.  In our view, the Deputy Judge was correct in refusing to grant the extension of time to the applicant.

22.  First, a delay of more than 8 months is substantial and significant.  Further, we agree with the Deputy Judge that the applicant’s explanation that he was ignorant of the time limit does not amount to a good excuse for the delay.  See: Re Tijan Chongan [2020] HKCA 155 at [7.5].

23.  Second, in light of the well-established legal principles quoted above, the intended appeal has no merits.

24.  The applicant’s contention based on high standard of fairness was argued but failed before the Deputy Judge.  The Deputy Judge explained thoroughly at paragraph 50 of the Deputy Judge’s Decision why he found that there was no procedure unfairness or Wednesbury unreasonableness in the Board’s Decision.  Except for regurgitating his argument before the Deputy Judge, the applicant failed to identify errors in the Deputy Judge’s reasoning.  The applicant’s reference to section 37ZT of the Immigration Ordinance is also clearly irrelevant.

25.  Thus, there is no viable ground to challenge the Deputy Judge’s Decision.  The intended appeal against the Deputy Judge’s Decision has no prospect of success. In any event, after reviewing the Deputy Judge’s Decision, we are of the view that the Deputy Judge was clearly right in refusing to extend time for the applicant to apply for judicial review.  We also do not see any other reason in the interest of justice that the intended appeal should be heard.

26.  Accordingly, we refuse the application for leave to appeal and dismiss the Summons.

27.  Since the application is totally without merit, we further make an order under Order 59 Rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing inter partes.