Re Bashir Afzaal

CAMP 80/2017
[2018] HKCA 53

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 80OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 116 OF 2017)

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Before: Hon Lam VP and Barma JA in Court

Date of Judgment: 5 February 2018

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JUDGMENT

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Hon Lam VP (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 Woodcock on 3 November 2017 refusing leave to the applicant to apply for judicial review. The applicant came to Hong Kong on 9 September 2013 illegally and was arrested on the same date by police. He lodged a non-refoulement claim on 11 September 2013. The Director decided against his claim on 9 December 2015, supplemented by a further decision of 24 October 2016. He appealed to the Torture Claims Appeal Board and the Board, after hearing him, dismissed the appeal on 28 February 2017. The intended judicial review was in respect of that decision of the Board and those of the Director. The Board rejected the non-refoulement claims of the applicant in respect of torture risk, BOR 3 risk, persecution risk and BOR 2 risk.

2.The judge refused leave on 3 November 2017 after hearing the applicant on 8 September 2017.  She noted the deficiency in the applicant’s Form 86 at [2] and having considered at length the materials before her, gave following reasons in refusing leave at [22] to [25] of the Form CALL-1:

“ 22. The applicant has filed an affirmation but it contains no substantive grounds nor states what relief is sought. He repeats the basis of his fear if he returns to Pakistan.

23. I have nonetheless considered, with rigourous examination and anxious scrutiny the papers of this application. I find the Directors and the adjudicator’s decisions to be without fault. They analysed the material, claims and evidence carefully. I do note that in several paragraphs the adjudicator has referred to the enemies of the applicant as Shia when he meant Sunni. I am sure they were genuine typing or unintentional mistakes.

24. I do not find any ground that shows there was an error of law by either decision-maker. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

25. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

3.According to court record, the CALL-1 form and the sealed order of the judge were sent by post to the applicant on 3 November 2017.

4.Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  On 21 December 2017, he applied by summons for extension of time to appeal.  His application was supported by an affirmation. In the affirmation, he said he was not aware of the time limit for appeal.  He did not produce any draft grounds of appeal in his summons or affirmation.

5.Notwithstanding directions by the Registrar of Civil Appeals requiring him to lodge submissions in support of his application and the reminder and unless order of 16 January 2018 (setting the deadline for lodging submissions by 23 January 2018), he did not do so. 

6.By reason of Order 59 Rule 2A and Rule 14A(1), this Court can determine an application for extension of time to appeal without an oral hearing.  The applicant had been notified of such possibility by the Registrar of Civil Appeals in the directions of 27 December 2017 requiring him to lodge his submissions.

7.The Court therefore proceeds to process his application based on the materials placed before us.

8.We do not find the long delay between 17 November and 21 December 2017 to be excusable.  There is no reason why the applicant did not check if there is a time limit for appeal if he was serious about his case.  The applicant did not explain if he had taken any steps to find out such time limit and, if he did, why he did not manage to find out the time limit before the deadline.  

9.In the absence of a cogent explanation for the delay, extension of time should not be granted under the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217 of 2015, 22 January 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 November 2016. 

10.The applicant did not include any draft grounds of appeal in his documents filed with the court.

11.Having read the full decision of the Board, we are of the view that it was perfectly open to the Board to come to its conclusions on the claim of the applicant including the lack of real risk of harm and the viability of internal relocation.     

12.When one reads the judge’s observations in the CALL-1 Form together with the detailed Reasons given by the Board in its Decision of 28 February 2017 as well as the Notice of Decision of the Director of 9 December 2015 and Further Decision of 24 October 2016, we agree with the judge’s conclusion that the intended judicial review is not reasonably arguable.  We do not see any errors of law or procedures in the proceedings before the Board.  We agree with the judge that leave to apply for judicial review should not be granted.

13.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 21 December 2017 is dismissed accordingly.

14.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.

The applicant acting in person