RE MUHAMMAD ISHTIAQ

CAMP 59/2021

[2021] HKCA 1666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 59 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1131/2017)

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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.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam given on 28 June 2018 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 1 December 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 24 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 31 July 2015 illegally and was arrested by the police on on the same day ([7] of the Director’s Decision).  He lodged a non-refoulement claim on 2 August 2015. 

3.  The applicant’s claim was based on threats from his paternal cousin arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [2] to [10] of the CALL-1 Form.

4.  By a Notice of Decision dated 24 July 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 7 November 2017, the Board dismissed the appeal on 1 December 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [18] – [22] of the Board’s Decision, the Board found that the applicant’s case was not believable and that he has failed to establish any real chance of being subject to any of the proscribed risks of harm.  The Board was also satisfied at [58] that state protection would be available for the applicant and at [57] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a form 86 on 21 December 2017 seeking to judicially review the Director’s Decision and Board’s Decision which contained the following grounds for judicial review, as summarized by the judge at [25] – [26] of CALL-1 Form:

“25. In Enclosure 2 of Form 86, the Applicant complained the Director failed to properly consider the issue of state acquiescence; failed to appreciate the corruption and incompetence of the administration in Pakistan; failed to appreciate the misconduct of the Pakistan police; failed to consider the absence of state protection; failed to properly consider relevant country-of-origin information (‘COI’); cherry-picked information; being unfair; rendered unreasonable decisions.

26.  The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to appreciate his limitation in adducing proof; failed to give him sufficient chance to arrange evidence.”

8.  In his affirmation in support of the leave application filed on 21 December 2017, the applicant exhibited the relevant documents without giving any ground for judicial review.

9.  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 give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [30] to [38] of the CALL-1 Form:

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

31. 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’.

32. The Applicant complained he had limitation in adducing proof. He mentioned he had been in custody.

33. The Adjudicator was aware of the Applicant’s situation.

34. In court, the Applicant said the documents which he would like to get hold of for submission was related to the land dispute. Those documents were already with his brother and father when he left Pakistan in July 2015.

35. The Applicant’s family made arrangements for the Applicant to leave Pakistan. He did not leave in a hurry. If the Applicant had wanted to use the alleged documents to support his non-refoulement claim, he would have brought a copy of them with him. Alternatively, the Applicant could have easily asked his family to send those documents to him in the almost one year before he was caught and imprisoned for illegal employment in August 2016. I am not satisfied the Applicant had really wanted to rely on the alleged documents or that he had been prejudiced in proving his claim to the Director or the Adjudicator.

36. The Applicant’s other complaints were vague. He could not elaborate or be specific about them even though he was invited to do so in court.

37. I have reviewed the Director’s decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had duly considered the Applicant’s claim. There was no evidence that the Director and the Adjudicator were prejudiced and cherry-picked information. They had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Director and the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

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

Application for extension of time to appeal and grounds for appeal

10.  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 26 August 2020, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Bruno Chan on 21 January 2021.

11.  By a summons filed on 18 February 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“The [judge] refused my leave to appeal for judicial review, I want to challenge his judgment, I have no time, please extend my time.”

12.  In the affirmation dated 18 February 2021, the applicant deposed that:

“…I do not agree and I have lost time to appeal.”

13.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 21 April 2021, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

15.  We are of the view that the applicant has not provided any reasonable explanation for his very substantial delay of over 2 years in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

16.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker.  On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.

17.  The applicant only stated that he wished to challenge the judge’s decision but he did not identify any error on the part of the judge.  The applicant has therefore failed to advance any viable ground of appeal.  We also do not see any error in the judge’s decision.

18.  We therefore 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 18 February 2021 is dismissed accordingly.