RE SAQLAIN MUHAMMAD

CAMP 39/2018

[2018] HKCA 346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 39OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 401 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an application for an extension of time to appeal against the decision of Deputy High Court Judge Woodcock on 5 March 2018 refusing leave to the applicant to apply for judicial review.  The applicant is a national of Pakistan who arrived in Hong Kong on 18 February 2015.  He was refused permission to land but he submitted a written signification to seek non-refoulement protection in Hong Kong.  His claim was based on the risk of harm from a Tariq Bajwa and people of Pakistani Muslim League – Noon party (“PML(N)”).  According to the applicant, he was a supporter of Pakistan Tehreek-e-Insaaf (“PTI”).  He alleged that after he refused to join PML(N), Tariq Bajwa and people of PML(N) attacked him.  

2.  By the Notice of Decision dated 19 May 2015, the Director of Immigration (“Director”) decided against the applicant’s claims.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director’s Decision”).  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing held on 22 July 2015, the Board dismissed the appeal on 12 August 2015 (“1^st Board Decision”). 

3.  By the Notice of Further Decision dated 20 December 2016, the Director also considered the BOR 2 risk and decided against the applicant in that respect.  The applicant appealed to the Board again.  On 23 June 2017, the Board dismissed the appeal without a hearing (“2^nd Board Decision”).

4.  The intended judicial review was in respect of the Director’s Decision and the two Board Decisions.  The Form 86 filed by the applicant on 14 July 2017 contained a rider which provided the following grounds:

(1)   The Director failed to appreciate the presence of state acquiescence in the applicant’s case

(2)   The Director failed to examine or give sufficient weight to the extended concept of state acquiescence

(3)   The Director failed to give sufficient weight to COI which supported the applicant’s stance that the police in Pakistan would not be able to protect him

(4)   The Director was merely speculating when he decided that there were alternative avenues to seek justice in Pakistan

(5)   The Director failed to attain the high standards of fairness and was unreasonable

(6)   The Board failed to make sufficient enquiry before finalizing its determination

(7)   The Board failed to advise the Applicant to obtain medical reports and evidence from Pakistani authorities to decide the seriousness of injuries to the applicant

5.  After summarizing the background of the case and giving consideration to the decisions of the Director and the Board, the Judge gave the following reasons in refusing leave at [5] to [8] and [14] to [17] of the CALL-1 Form:

“ 5. 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; Order 53 rule 4. In his affirmation the applicant is required to give an explanation if there has been a delay in making the application. Here, there is no explanation for the delay and the delay is substantial. There is a delay of almost 26 months between the decision of the Director and the application and a delay of almost 23 months between the adjudicator’s first decision and the application. There is no delay in applying for leave to judicial review the TCAB’s second decision dated 23 June 2017.

6. In any event, it is my view that there is no room for the applicant to judicial review the Director’s decision unless there are exceptional grounds, for example an appeal point that was not dealt with by the TCAB for some reason. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or a rehearing. This is why I am of the view there is no room to judicial review the Director’s decision as well. This leaves me to decide whether there should be an extension of time to apply for leave to judicial review the TCAB’s first decision.

7. I have considered the legal principles for granting an extension of time that have been set out in AW v Director of Immigration & anor, CACV 63/2015, 3 November 2015. The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

8. The delay is very significant and there is no reason for the delay. There is no good reason to consider an extension. This is because the merits of the substantive application after perusal of the papers are weak. Moreover, the application does not raise any questions of general public importance. I therefore limited this leave application to the TCAB’s second decision of 23 June 2017 which relates only to the applicant’s appeal of the Director’s rejection of his BOR 2 risk claim.

…

14. The applicant had no grounds that directly related to the BOR 2 appeal. He reiterated in oral submissions that his life was still in danger in Pakistan and that he was still trying to obtain medical evidence from home as well as raise funds for legal representation.

15. I went on to consider with rigourous examination and anxious scrutiny the adjudicator’s decision. The fact she did not arrange a second oral hearing does not trouble me in view of the depth and detail of her first decision. In addition, the applicant had not submitted any new evidence, there were no issues of law or credibility that had to be dealt with in his presence. An oral hearing is not as of right. It is a decision made by the adjudicator in his or her discretion.

16. I considered the general principle as it is set out in the case of ST v Betty Kwan & Ors [2014] 4 HKLRD 277 (paras 20 36). I am satisfied that the adjudicator has not committed any procedural irregularity in not conducting a second oral hearing. The adjudicator’s review of the Director’s decision had not involved any resolution on the facts or real issue of credibility or raised a question of law. There was no error in the exercise of her discretion. The applicant was not prejudiced.

17. In my judgement, the applicant’s application is not reasonably arguable.  There is no realistic prospect of success therefore I refuse leave for judicial review of the adjudicator’s decision dated 23 June 2017.”

6.  According to the court record, the Judge’s order was sealed on 5 March 2018.

Application for an extension of time to appeal

7.  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 28 March 2018, he applied for an extension of time to appeal. His application was supported by an affirmation dated 29 March 2018.  In the affirmation, it was deposed that he changed his address on 1 February 2018 and did not know how to inform the Court.  The decision was passed to the applicant by the new tenant on 26 March 2018. 

8.  In the draft Notice of Appeal, the applicant argued that the judge was wrong in (1) failing to apply the principles of irrationality to the Director’s Decision and (2) failing to apply the principle of procedural unfairness to the Director’s Decision whereby the Director was required to give reasons to justify his decision.

9.  The applicant did not comply with the Court’s directions on 3 April 2018 and 26 April 2018, he failed to lodge written submissions for the present application for an extension of time to appeal.  In the circumstances, this Court will consider his application based on materials already before us.

Discussion

10.  The applicant claimed he did not know how to inform the Court about the change of address.  It is common sense that if a litigant does not notify the Court of his change of address, there would be delay in communication.  If he does not do so, he should arrange for timely transmission of mail from his old address to the new one.  As it has been said repeatedly, it is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant, see Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; Re Ahmed Syed Rafiq [2018] HKCA 178.

11.  The delay in the present case is a short one. Notwithstanding this, the arguability of the intended appeal is an important consideration in an application for extension of time, 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; Gurung Min Bahadur [2018] HKCA 226.  The crucial consideration in this application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review.  After reviewing the materials placed before the Judge, we agree with the Judge that the applicant’s claims are not reasonably arguable and the intended judicial review has no prospect of success. 

12.  The Judge was right in holding that the applicant had seriously delay in applying for leave to judicial review in respect of the Director’s Decision and the 1^st Board Decision.  The applicant had not provided any cogent explanation for the delay in the Court below and in the draft Notice of Appeal he did not seek to overturn the Judge’s determination on delay. 

13.  Therefore, his intended appeal against the judge’s refusal of leave to challenge the Director’s Decision and the 1^st Board Decision must fail.

14.  We note that none of the grounds in the draft Notice of Appeal concern the 2^nd Board Decision.

15.  We wish to say this regarding the applicant’s argument that the Board erred in failing to advise the applicant to obtain medical reports and evidence concerning his injuries.  We do not accept that the Board has any duty to advise the applicant.  The applicant already had the benefit of legal representation before the Director and at the Board hearing. There is no merit in this line of argument.

16.  Having read the full decision of the 2^nd Board Decision together with the 1^st Board Decision, it is plain and clear that the applicant’s case of the risk of harm had been carefully considered and properly rejected.  As this Court has repeatedly observed, although the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision-maker is still the Board.  Determination of merits of the case is primarily a matter for the Board.  See: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  Having read the full decision of the Board, we take the view that it was perfectly open to the Board to come to its conclusion on the lack of real risk. 

17.  Like the Judge, we do not see any errors of law or proceedings in the proceedings before the Board.  Nor do we see any reasonable basis to challenge the fairness of the process.  For these reasons we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 28 March 2018 is dismissed accordingly.

18.  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.