Re Akhtar Nabeel also known as Muhammad Nabeel

CAMP 100/2018

[2018] HKCA 649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 100 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 337/2017)

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Before: Hon Cheung JA and Barma JA in Court

Date of Judgment: 28 September 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 application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 20 April 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 23 March 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 29 June 2015 and 3 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 24 May 2011 illegally and was later arrested by the police on 18 October 2011.  After his arrest, he lodged a non-refoulement claim on 23 October 2011. 

3.The applicant’s claim was based on the threat from a group of men who tried to kidnap a young boy and killed the boy’s father in the process.  The applicant said he was a witness to the attempted kidnapping. The details of the applicant’s claim have been summarised by the judge at [3] to [4] of the CALL-1 form.

4.By a Notice of Decision dated 29 June 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.By a Notice of Further Decision dated 3 November 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 9 December 2016, the Board dismissed the appeal on 23 March 2017 (“Board’s Decision”).

7.At [46] of the Board’s Decision, the Board found that the applicant’s case was not credible.  At [68] the Board observed that state protection would be available to him.  At [69] the Board was satisfied that internal relocation would be viable.

The deputy judge’s decision

8.The applicant filed a form 86 on 22 June 2017 which contained no ground for seeking relief. 

9.In the affirmation in support of the leave application dated 22 June 2017, the applicant said that “ground will be provided [later] after we hire my legal representative”.  The applicant never submitted any document to supplement his leave application.

10.The applicant did not request an oral hearing before the judge.  The judge decided to deal with the application on paper.

11.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at paragraphs 11 to 12 of the CALL-1 form:

“11. However, he has since not submitted anything further to court and as such there is no ground put forward by him at all for his intended challenge by judicial review, and having considered both the decisions of the Director and the Board with rigorous examination and anxious scrutiny, neither do I find any ground or reason to suggest that the Director or the Board has committed any error in law or procedural unfairness in either of their decision, or any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim. Both have applied the same established principles and the correct law and relevant criteria with the same care and high standards of fairness in their consideration of his claim, and the applicant was given every opportunity to state his case and to present his evidence. I am simply unable to see any basis or merit in any criticism of either the Director or the Board in the process.

12. In the premises I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

12.According to the court’s records, a copy of the CALL-1 form and the sealed copy of the deputy judge’s order were sent to the applicant on 20 April 2018.

Application for extension of time to appeal and grounds for appeal

13.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 5 July 2018, he applied for an extension of time to appeal.  His application for extension of time is supported by an affirmation dated 5 July 2018 where he said that:

“1. I want to appeal against the decision…for not granting me leave…

2. This decision is unfair and unreasonable.

3. The reason I did not appeal in time was because I was not aware that I have to appeal in certain period of time.  After seeking legal advice I came to know that I have to appeal in a specific period of time. Therefore, I seek leave to appeal out of time.”

14.By a letter dated 24 July 2018, the applicant said he would seek legal advice and file documents for his application for an extension of time to appeal.  He did not do so.

15.Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 26 July 2018, the applicant was debarred from lodging any written submission and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

16.We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  Ignorance of the law on the part of the applicant is not a reasonable excuse for the delay.

17.In any event, the applicant did not put forward any viable grounds of appeal.  He has only asserted that the judge’s decision was unfair and unreasonable.  The intended appeal is clearly bound to fail.  We will not grant an extension of time for a hopeless appeal.  The summons of 5 July 2018 is dismissed accordingly.

18.We are also 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