RE AZAM ADEEL

HCAL 123/2022

[2023] HKCFI 110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 123 OF 2022

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D E C I S I O N

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INTRODUCTION

1.  This is the Applicant’s application by summons filed on 6 October 2022 (the “Summons” or “EOT Appeal Application” as the context requires) for extension of time to appeal the order of this Court dated 13 July 2022 (the “Order”) refusing his application to withdraw (the “Withdrawal Application”) his application for leave to apply for judicial review (the “Leave Application”) of the decision (the “Decision”) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dismissing his appeal against the decision of the Director of Immigration refusing his non-refoulement claim. The Leave Application was made out of time and was deemed to include an application for leave to apply out of time (the “EOT JR Application”).

BACKGROUND

2.  By way of background, the Applicant, a national of Pakistan, entered Hong Kong on 26 November 2007 illegally. He raised a torture claim which was rejected by the Director of Immigration (the “Director”). He appealed to the Board against the decision of the Director in his Notice of Decision dated 17 November 2016. His appeal was dismissed by the Board on 22 September 2017. After more than four years and four months, he filed a Form 86 on 8 February 2022 to apply for leave to apply for judicial review of that Decision.

3.  In his Form 86, he gave an address in Castle Peak Bay Immigration Centre (“CIC”). As detention in immigration facilities often proved to be transient, it is the standard practice of this Court to seek confirmation from the Immigration Department for the detainee’s address before further processing his application. By a letter dated 21 April 2022, this Court enquired from the Immigration Department whether the Applicant had been removed or is still being detained in CIC or Tai Tam Gap Correctional Institution (“TTGI”) and his latest address if he had been removed. In reply, the Immigration Department provided the Applicant’s residential address in Chatham Road[1].

4.  When the Leave Application came to be considered by this Court, notice of hearing on 12 May 2022 (the “notice of hearing”) was sent to the Applicant’s address in Chatham Road. He did not attend the hearing. On 20 May 2022, the Court gave him directions (the “directions”) by letter to file a statement explaining his absence at the hearing and the more than four years’ delay in making the Leave Application and informed him that his Leave Application will be determined on paper. Accepting the Applicant’s assertion that he was detained in CIC, he did not receive the notice of hearing or the directions. These matters were unknown to the Court at the time. But, because of subsequent events, these matters became immaterial and irrelevant.

5.  The Applicant wrote to this Court on 6 and 18 June 2022 giving an address in TTGI. He sought to withdraw his Leave Application because his problem in Pakistan had been solved and he wished to return home. He did not know about the hearing and the directions. Having considered his non-refoulement claim form, the Notice, the Decision, all the grounds of application raised in his Form 86, his supporting affirmation, all the papers, and all the circumstances, the Court considered it appropriate to determine his Leave Application and EOT JR Application on paper. The Court found there was no merit in the Leave Application. That was fatal to his Leave Application. It was futile to explore with him his reasons for the delay. And in any event, no explanation for the more than four years’ delay had been proffered. Accordingly, no extension of time was granted for him to file the Leave Application which would only stand to be dismissed. Despite his two letters dated 6 and 18 June 2022, the Withdrawal Application had not been properly made. In view of his intention to withdraw the Leave Application, his Leave Application may also be dismissed for want of prosecution. Hence, the Order was made refusing him leave to apply for judicial review out of time (the EOT JR Application) and dismissing his Leave Application. The Form CALL-1 and Order were served on the Applicant in TTGI on 13 July 2022.

6.  Now, the Applicant is obviously not satisfied with the Order. On 11 August 2022, two weeks after the time to appeal expired, he wrote to this Court requesting the Court “not to withdraw” his Leave Application because his “problem … is still not yet solved”. By its letter dated 18 August 2022, this Court informed him that his Leave Application had not been withdrawn but had been determined as if it were extant and refused on its merit. That should be clear to him by reason of paragraphs 3, 4, 5 and 40 of the Form CALL-1. Hence, it would serve no purpose to consider his request to “not to withdraw” his Leave Application.

7.  On 25 August 2022, the Applicant wrote in again asserting that he had never received the notice of hearing or the Decision as explanation for his default at the hearing and explanation for the more than four years’ delay in making the Leave Application. That was obviously in response to the Court’s adverse comment on his failure to provide an explanation for the more than four years’ delay in making the Leave Application as mentioned in paragraphs 3 and 4 of the Form CALL-1. But his lack of explanation was never a reason for the dismissal of his Leave Application. The Court replied repeating the contents of its letter dated 18 August 2022 and informed him that his request will not be entertained.

8.  On 6 October 2022, the Applicant lodged his Summons applying for leave to appeal this Court’s Order refusing his Leave Application. That Summons was filed two months and ten days out of time. On 19 October 2022, he also applied for legal aid which was refused on 22 December 2022.

THE APPLICABLE LEGAL PRINCIPLES

9.  The Summons raises questions about the propriety of the Court’s decision relating to his Withdrawal Application, Leave Application, EOT JR Application and EOT Appeal Application. The Withdrawal Application had not been properly made. Even if it had been, this Court had not given effect to it as the Court had determined the Leave Application on its merit. The legal principles applicable to this Summons are the principles relating to application for leave to apply for judicial review, for making such an application out of time, and for appealing the court’s decision refusing the application for leave to apply for judicial review out of time.

10.  As explained in paragraph 5 of the Form CALL-1, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. In an application for leave to apply for judicial review, the court will only scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2]. The issues raised by the Leave Application are whether the Decision contains any such vitiating elements, i.e. whether there is merit in the Leave Application.

11.  To consider whether to grant extension of time to make the Leave Application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the Leave Application; (iv) the balance of prejudice to the Applicant and the proposed respondent if extension of time is granted; and (v) whether the Leave Application raises any questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[3]. Merit of the Leave Application is a very important factor. However, it was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[4] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. Lack of merit is usually determinative. If there is no merit, the intended judicial review will serve no purpose and no leave to apply will be granted. The other factors may have a bearing where the merit is not entirely clear.

12.  Where the Leave Application was refused by a judge, the applicant may, pursuant to Order 53, rule 3(4) of the Rules of the High Court, appeal against the judge’s order to the Court of Appeal within 14 days after such order. In Jagg Singh and Torture Claims Appeal Board/Non-refoulement Claims Petition Office[5], the Court of Appeal held that in considering whether to extend time for appealing such a decision, the court will take into account: (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. The considerations are essentially the same as those for applying for the leave to apply for judicial review out of time, except that the court need not balance the prejudice as between the Applicant and the intended respondent. Prejudice to the Applicant is not a consideration because he only has himself to blame for the delay in appealing. Again, lack of merit is also determinative. If there is no merit, even if leave is granted the appeal will only be dismissed. Hence, merit of the Leave Application which was dismissed is the common and most important consideration in the Leave Application, EOT JR Application and EOT Appeal Application.

GROUNDS OF THE INTENDED APPEAL AND ISSUES RAISED BY THIS SUMMONS

13.  In his Summons which is repeated word for word in his supporting affirmation, the Applicant sought leave to appeal the Order out of time. He identified the Order which he sought to appeal and asked to be granted “leave to advance a new sole ground of appeal”. But he did not give any particulars about his “new sole ground of appeal.”

14.  In his supporting affirmation filed on 13 December 2022, he attached a ten-page submissions. The submissions contain statement of legal principles about the requirement of procedural fairness and reasonableness in non-refoulement proceedings and quotations from the authorities. At page 5 of the submission, he submitted that “the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s Application without properly assess the credibility of the Applicant.” At page 7, he quoted section 37ZT of the Immigration Ordinance relating to considerations which the Board may take into account when considering late filing of Notice of Appeal with the Board. That provision is applicable to appeals before the Board against the Director’s Notice of Decision. It has no application to appeals against the decision or order of the Court of First Instance refusing an application for leave to apply for judicial review of the decision of the Board. In pages 9 and 10 of his submission, the Applicant repeated his explanation for the more than four years’ delay by alleging that he never received the Decision from the Board; that he was only first informed of the Decision when he was interviewed in CIC on 24 January 2022; and that during or after the interview, neither the Board nor the Director has sent him the Decision. He submitted that “it is important for the judge to look at the matter and cause of delay.” He also emphasized that he had never received the notice of hearing from this Court because it was sent to his home address instead of to CIC where he was then detained. The “new sole ground” has not been pleaded.

15.  Casting the widest net possible, the grounds of his intended appeal are errors of law, procedural unfairness and irrationality in the Board’s Decision and in the Order of this Court. As against the Board’s Decision, no particulars of any of these vitiating elements or facts have been pleaded other than the six grounds stated in his Form 86. As against this Court’s Order, no error of law has been asserted; but impliedly, he is complaining about procedural unfairness in that the Court did not consider his explanation for the more than four years’ delay and that he never received the notice of hearing and the directions inviting his explanation for the delay; neither of which he is responsible. He also seemed to suggest that the refusal of his Leave Application is Wednesbury unreasonable. The Court shall treat these grounds as his “sole new ground”.

ERRORS OF LAW, PROCEDURAL UNFAIRNESS AND IRRATIONALITY IN THE BOARD’S DECISION

16.  The Applicant gave no particulars of his grounds of attack on the Board’s Decision other than those six grounds stated in his Form 86. Some of his grounds are obviously copied from a template which have no bearing to the facts of his case. His grounds are attacks against finding of facts of the Board. He did not attend the appeal hearing before the Board and did not respond to the Board’s request for explanation for his absence. He actually absconded and did not report his recognizance. Much of his evidence is hearsay. The Board considered his evidence inherently incredible and that he failed to discharge the burden of proving his case: see in particular paragraphs 13, 14, 34, 35 and 41 of the Board’s Decision. These are finding of facts which are exclusively within the province of the Board which the Court on a judicial review will not interfere save for errors of law, procedural unfairness and irrationality in the Decision. The Court had rigorously examined the Decision, the Notice, the Form 86, his supporting affirmation and all the papers with anxious scrutiny: see in particular, paragraph 3, 4, 5, 39 and 40. The Court had also carefully considered his grounds of application as set out in his Form 86. Despite those grounds were lacking in particulars, the Court had given them the broadest consideration and had an overall scrutiny of the Decision: see paragraphs 28 to 40. After an anxious scrutiny of the Decision, the Court was satisfied that the Decision was utterly without fault. His claims are not reasonably arguable. His proposed judicial review has no realistic prospect of success. There is no merit in his Leave Application. As already analysed in paragraphs 11 to 13 above, merit of the Leave Application is the single and most determinative consideration in the Leave Application, EOT JR Application and EOT Appeal Application. Absence of merit is fatal to his Leave Application and EOT Appeal Application. It was futile to explore with him his reasons for the delay. Despite some adverse comments about his lack of explanation for the more than four years’ delay, that delay never formed part of the reasons for dismissing his Leave Application and EOT JR Application.

APPLICANT’S EXPLANATION FOR DELAY IN MAKING THE LEAVE APPLICATION

17.  Length of the delay in making the Leave Application and in appealing the Order are not in dispute. The thrust of the Applicant’s Leave Application is that he had an explanation for the delay, i.e. he had never received the Decision. The veracity of that explanation has not been explored. Though the Court adversely commented on the credibility of that explanation, it was irrelevant because the Leave Application was determined on its merit and delay never formed part of the reasons for refusing that application. As delay was vigorously argued by the Applicant, it is discussed hereunder for completeness.

18.  Despite the very long delay, the Applicant offered no explanation whether in the Form 86 or supporting affirmation. In his Form 86, he made numerous specific attacks on the Board’s Decision. But never in the Form 86 or his supporting affirmation did he make any complaint about non-receipt of the Decision. Now he claims for the first time after more than five years that he had never received the Decision as an explanation for the late Leave Application because at the material time he was detained in CIC. He wrote in his letter dated 25 August 2022:

“I was detained by Immigration since 24 Jan 2022 until now. So how can I received your notice for hearing. I have informed to CPC welfare officer about my judicial review. He reply me we will update you if have any information.

Reason for late application

I did not receive any decision from appeal board and any notice from hearing appeal board. I have to know by my case officer (Imm.D) 24 Jan 2022. He said me your appeal board was refused my non-refoulement claim. He said if you want continue you should apply (J.R.).”

19.  In the first paragraph of his letter quoted above, the Applicant sought to explain his non-attendance at the hearing and lack of response to the Court’s directions inviting for explanation of the delay in making the Leave Application. It is accepted that he did not receive the notice of hearing and directions. But that explanation does not explain his more than four years’ delay before making the Leave Application. It is irrelevant.

20.  By reason of the long lapse of time and the circumstances, his explanation for that long delay begs belief. The delivery of Hong Kong Post is usually very reliable. It is unlikely that the Decision would have been mis-delivered. During the four odd years since handing down of the Decision, the Applicant would have reported his recognisance to the Immigration Department on numerous occasions. It is unlikely that the Decision had not been drawn to his attention as it had been on 24 January 2022 as alleged by the Applicant. Furthermore, if the Applicant were so concerned about his risks he would not have made no enquiries with the Board during those four odd years about the outcome of his appeal. His conduct is consistent with his intention to delay the refoulement process as demonstrated by his not attending the appeal hearing before the Board and not answering the Board’s request for explanation. His explanation for the four years’ and one month’s delay is inherently improbable. But, the Court must emphasise that that delay never formed part of the reason for refusing his Leave Application and EOT JR Application.

THE APPLICANT’S EXPLANATION FOR THE DELAY IN APPEALING THE ORDER

21.  The Applicant never explained the delay in appealing the Order dismissing his Leave Application, whether in his Summons, supporting affirmation or his ten-page submissions. He knew he was out of time and must know the need to give an explanation to support his EOT Appeal Application. He had received the Form CALL-1 on or about 13 July 2022. It was only two weeks after the time to appeal had expired that he made the EOT Appeal Application. Again due to the total lack of merit in his Leave Application, the Court did not find it necessary to explore with him the reasons for the delay in appealing. Leave to appeal out of time will not be granted where the appeal has no prospect of success. Hence, his EOT Appeal Application was also refused.

CONCLUSION

22.  For the above reasons, the Applicant’s Summons is dismissed.