RE MAJEED AMJAD

CACV 237/2022

[2022] HKCA 1862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 237 OF 2022

(ON APPEAL FROM HCAL 2794/2018)

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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 appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 7 June 2022 refusing to extend time for the applicant to apply for leave for judicial review and dismissing his application for leave. The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 19 July 2018[1] (“the Director’s Decision”) directing that the applicant may not make a subsequent non-refoulement claim under section 37ZO of the Immigration Ordinance (Cap 115) (“the Ordinance”).

Background

2.  The applicant is a national of Pakistan.  He first entered Hong Kong illegally on 25 July 2006 and was arrested by the police on 26 March 2007.  He raised a torture claim on 28 March 2007, which was thereafter treated as a non-refoulement claim.  However, on 15 September 2015, the applicant, by letter to the Immigration Department, requested that his claim be withdrawn by reason that he would like to return to Pakistan as soon as possible, and that it was safe for him to do so.

3.  Thereafter, the applicant again entered Hong Kong illegally on 7 June 2018.  He lodged a second non-refoulement claim on 26 June 2018, which was considered by the Immigration Department as a subsequent claim under section 37ZO of the Ordinance.  His claim was based on a fear of being harmed or killed by the relatives of his ex-girlfriend.

4.  By a Notice of Decision dated 19 July 2018 (i.e. the Director’s Decision), the Director decided that the applicant may not make a subsequent claim, by reason that, inter alia, he has failed to provide sufficient evidence in writing to satisfy an Immigration Officer that there has been a significant change of circumstances since the previous claim was withdrawn.

The Judge’s decision

5.  The applicant filed a Form 86 on 7 December 2018 out of time, seeking to judicially review the Director’s Decision, without setting out any grounds of review.  In his supporting affirmation filed on the same date, he merely stated that he “would like to reject and review the decision made by Immigration Department on my case. They disregard my dangerous situation”.

6.  After summarising the facts and background of the case, giving due consideration to the Director’s Decision, the Judge refused to extend time for the applicant to apply for leave for judicial review and dismissed his application for leave.  The Judge gave the following reasons in refusing to extend time at [11] to [17] of his decision dated 7 June 2022 (“the CALL‑1 Form”)[2]:

“11.  On 7 December 2018 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he merely stated that he rejects the decision as it disregarded his dangerous situation but without providing any details or elaboration as to how it did so or put forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

12.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review 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.

13.  As the last day of the three month-period for him to file his Form 86 fell on 19 October 2018, the Applicant was therefore some 7 weeks late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 7 weeks must be considered as very substantial and inordinate, for which he explained at the hearing that he was not aware of the rules and needed to seek help from his friends but by then he was already out of time with his application.

15.  The record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, while ignorance of the rules can never be accepted as an excuse for their non-compliances. As such and in the absence of any further details or evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided any good reason for his serious delay.

16.  As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth any proper ground for his intended challenge, and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim. As such I do not find any merits in the Applicant’s intended application for judicial review either.

17.  In the premises and for the reasons given, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

Grounds for appeal

7.  In the Notice of Appeal filed on 13 June 2022, the applicant stated:

“The High Court did not find any error of proceeding but I can show many error. Give me a chance to show the error of the Adjudicator. My apply [should] not be refused.”

8.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

9.  In breach of the directions by the Registrar of Civil Appeals, the applicant lodged his written submissions late. However, given the short delay (by 1 day), we have proceeded to consider the submissions.  In his written submissions lodged on 28 June 2022, the applicant merely set out the background to his claims and the dangers which allegedly awaited him in Pakistan.

Discussion

10.  The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

11.  In his application in the court below, the applicant provided no particulars as to any respects in which the Director was unreasonable or unfair, or had erred in law, in reaching the Director’s Decision, or how that Decision could be said to be Wednesbury unreasonable.

12.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the decision-maker. The Judge is not required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return, and should not usurp the role of the decision-maker(s) in the first instance.  The Judge considered the Director’s Decision and found no basis for intervening.  In our view, he was clearly correct to do so.

13.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

14.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.