RE ALI MALIK

HCAL 2915/2018

[2020] HKCFI 3042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2915 of 2018

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DECISION

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Background

1.  On 18 October 2019, Deputy High Court Judge Lung (“the Judge”) refused to grant extension of time to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 7 March 2018.  The Board in its decision upheld the decisions of the Director of Immigration (“the Director”) dated 14 November 2014 and 9 October 2017 rejecting the applicant’s non-refoulement claim.

2.  The Judge dismissed the application for reasons stated in [12-20] of his decision (Form CALL-1). Significantly the Judge found in his conclusion that the applicant’s intended application for judicial review had no reasonable prospect of success.

3.  By a summons filed on 12 June 2020, the applicant applied for extension of time to appeal against the Judge’s refusal. 

4.  On 14 July 2020, the decision of H v Director of Immigration [2020] HKCFA 22 was handed down by the Court of Final Appeal.  The CFA held that the refusal by a judge of an extension of time to make an application for judicial review is part and parcel of a refusal to grant leave to apply for judicial review.  Therefore, the decision is appealable as of right by reason of Order 59, rule 21(1)(g): paragraph 42 of the judgment.  There is no further need under section 14AA of the High Court Ordinance (Cap 4) for an applicant to seek leave to appeal before the Court of First Instance judge before he/ she may appeal directly against the judge’s refusal to extend time to apply for leave for judicial review.

5.  However, the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court ended on 1 November 2019. He was therefore late by more than 6 months with his intended appeal when he filed his summons.

6.  In his summons and affirmation, he did not explain why he was late in his application.  At the hearing, he accepted it was his mistake and offered no further explanation.  He also said he has a problem in his country and cannot go back.

7.  In his supporting affirmation he raised the following grounds of appeal:

(a)     The hearing bundle for the hearing before the Board was confused and not provided in time and without translation. He was confused of what was happening in the hearing.

(b)     The hearing was unfair due to lack of care of the Board.

(c)     The Board relied on source of news which is not officially recognized or it is simply hearsay, resulting in groundless speculations that it is safe for him to return to his country.

(d)     The court and the authorities have been negligent and failed to perform a “standard duty of care”.  The court procedures discriminated against persons like him who do not understand English.

(e)     All acts of the authorities have been highly discriminatory and unfair to him.

Discussion

8.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

9.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

10.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

11.  The length of delay in the present application was significant and substantial.  The applicant does not have a cogent explanation for the delay.  The delay is not excusable.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal.

12.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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 evaluation of risk 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.  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

13.  In his decision dated 18 October 2019, the Judge noted that the applicant’s application for judicial review was late for about 6 months.  He dealt with each of the grounds of review [11] raised by the applicant and found no merits in each of the grounds with reasons why he rejected all the grounds.  The Judge found that grounds are either inconsistent with what the applicant said before the court or was only his opinion without any evidence in support.

14.  The “ground of appeal” attached to his affirmation in support of the present application are essentially the same as his grounds of judicial review.  As the applicant confirmed before the Judge that he had had a fair interview with the immigration officer and a fair hearing before the Board, the complaints that he did not have a fair hearing before the Board because of the late supply of the hearing bundle or lack of translation/ interpretation have no basis at all.

15.  In any event, it is well established that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.  The applicant was also assisted by an interpreter in the hearing before the Board.  It is further noted that the application and affirmation in support as well as the non-refoulement claim form were written in English.  These indicate the applicant was being able to access to language assistance if needed.  The hearing bundle would mainly consist of documents he had been aware of during the first screening process.  He could also ask the Board to give time or adjournment to understand the documents.  I do not accept the assertion that the alleged lack of language assistance or late supply of hearing bundle would render the process unfair.

16.  The other grounds are bare assertions without evidence in support.

17.  None of the grounds are arguable.

18.  Having considered the materials before me, I am of the view that the findings by the Board and the Judge’s observations are justified.  I share the Judge’s view that the applicant’s claim for judicial review was not reasonably arguable. The Judge was perfectly entitled to refuse to grant extension of time for leave to apply for judicial review.

Conclusion

19.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time, and the summons dated 12 June 2020 taken out by the applicant is dismissed.