Case Document

100%Judiciary

CAMP 74/2018

[2018] HKCA 531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 74OF 2018

(ON AN INTENDED APPEAL FROM HCAL 626/2017)

________________________

RE:

MEHMOOD TARIQ

Applicant

________________________

Before: Hon Lam VP and Poon JA in Court

Date of Judgment: 23 August 2018

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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 Campbell-Moffat J on 17 April 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Pakistan who arrived in Hong Kong illegally on 13 February 2014 and was arrested on the same day. On 26 February 2014, he raised a non-refoulement claim.

2.His claim is based on the threat from 2 unrelated persons. The first is a man identified as AM who forced the applicant at gun point to transfer the applicant’s land to AM. The applicant was kidnapped and beaten by AM’s men because he sought compensation from AM. The second is a man identified as M who was involved in killing the applicant’s brother by setting him on fire. The applicant exposed M and feared that M would kill him if he returns to Pakistan.

3.By the Notice of Decision dated 3 May 2016, the Director of Immigration (“Director”) decided against the applicant’s claims. The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).

4.On 10 May 2016, the applicant appealed to the Torture Claims Appeal Board (“the Board”).

5.By the Notice of Further Decision dated 5 December 2017, the Director also considered the BOR 2 risk and decided against the applicant in that respect.

6.On 14 March 2017, the Board held a hearing. The applicant appeared in person and was assisted by an Urdu/Punjabi interpreter. On 23 June 2017, the Board dismissed the appeal on all applicable grounds (including BOR2 risk) (“Board Decision”).

7.The intended judicial review was in respect of the Director Decision, Further Decision and the Board Decision. Neither the Form 86 filed by the applicant on 15 September 2017 nor the applicant’s affirmation of the same date contained any ground. The applicant did not request an oral hearing.

8.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 [12] to [15] of the CALL-1 Form:

“ Leave to apply for judicial review

12. Judicial Review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

13. The Applicant seeks to judicially review the Decisions of both the Director and the Adjudicator. He gives no reasons for seeking review and no grounds in support.

Conclusion

14. I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

15. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.”

9.According to the court record, the Judge’s order was sealed on 17 April 2018.

Application for an extension of time to appeal

10.Pursuant to Order 53 Rule 3(4), Rules of the High Court, Cap 4A, the applicant had 14 days to lodge an appeal. He failed to do so. By a summons dated 24 May 2018, he applied for an extension of time to appeal. His application was supported by an affirmation of the same date. In the affirmation, the applicant deposed that the judicial review “letters” were lost and he did not receive them. He asked that his case be reviewed because it is about life and death. He also said if he were to return to Pakistan, he would be sent to jail for 10 years.

11.The applicant did not submit any draft Notice of Appeal to support his application.

12.On 26 June 2018, the Registrar of Civil Appeals made the direction that unless the applicant lodges written submissions on or before 12 July 2018, he would be debarred from lodging any written submissions. His application for extension of time to appeal would be determined on the basis of the summons and affirmation filed in support. On 12 July 2018, the applicant sought an extension of time to lodge his written submissions by about 8 weeks because he needed to get a copy of his papers. On 19 July 2018, the Registrar refused the applicant’s application to extend the time for lodging written submissions.

Discussion

13.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of the delay; (2) the reason for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted, see: Ex parte Monjur Hossain [2018] HKCA 476 at [14]; Ex parte Saqlain Muhammad [2018] HKCA 346.

14.The delay in the present case is 23 days. We do not accept the applicant’s explanation that he failed to appeal against the judge’s decision because he did not receive the letter informing him of the outcome of the leave application. The CALL-1 Form was sent by post to the applicant at his address (given in his Form 86 and used all along by him as the address for service in these proceedings) on 17 April 2018. He should have received the document well within the time limit through the ordinary course of post. He did not explain how he came to know about the outcome in the court below if he had not received the CALL-1 Form sent by post.

15.The application in Form 86, the affirmation in support and the Notice of Appeal and affirmation of 24 May 2018 did not contain any substantive grounds for seeking relief. There are indicia that the applicant did not prosecute these applications with much diligence. As we said, he did not lodge any submissions notwithstanding the directions of the Registrar of Civil Appeals.

16.In any event, 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, Islam Raja Rais v. Director of Immigration, HCMP 881/2017, 26 June 2017, and Re Gurung Min Bahadur [2018] HKCA 226.

17.We do not find any merit in the applicant’s case. The Board had already evaluated the alleged consequences upon the applicant’s return at §69 of the Board Decision. The Board concluded that the applicant’s “account is riddled with inconsistencies, deficiencies and lies”. The applicant did not seek to challenge this finding of fact. The Board summed up the reasons for the rejection of his appeal at [7] of its decision:

“ 7. For reasons to be set out below, I have come to the conclusion that this Appeal shall be dismissed. I find that:

(1) The Appellant fails on credibility. He has failed to prove his account even on the lower standard of real risk or reasonable degree of likelihood. There is no factual basis to support any of the applicable grounds.

(2) Further and in any event, even if one gives his account the most favourable interpretation, there is no real risk that the Appellant would be subjected to any of the proscribed ill-treatment on his return.

(3) State protection will be available to the Appellant on his return.

(4) None of the applicable grounds is established.

(5) Further and in any event, internal relocation is a viable option in the Appellant’s case.”

18.In the circumstances, the applicant has not even begun to show any error on the part of the Judge in refusing to grant him leave as he did not put in anything in the Form 86 and his affirmation to vitiate these conclusions.

19.After reviewing the materials placed before the Judge, we agree with the Judge that the applicant did not have any reasonably arguable ground to challenge the decision of the Board and the intended judicial review has no prospect of success.

20.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.

21.We would not grant extension of time for a hopeless appeal to be lodged. The summons of 24 May 2018 is dismissed accordingly.

22.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.