Re Shan Ali

CAMP 40/2019

[2019] HKCA 764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 40OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1155/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.On 27 November 2018, Campbell-Moffat J (“the Judge”) refused to grant an extension of time for the applicant to apply for leave for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board and the adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 19 April 2017.

2.The applicant failed to apply to the court for leave to appeal against the said decision within the 14-day statutory time limit.  He only did so on 13 December 2018.  On 1 March 2019, the Judge refused to grant an extension of time for him to apply for leave to appeal.

3.Again, the applicant failed to renew his extension of time application before this Court within the 14-day statutory time limit.  It was not until 18 March 2019 that he issued the present summons before this Court, stating that he wanted to “appeal [against his] judicial review decision”.

Background

4.The applicant is a national of Pakistan.  According to him, he illegally entered Hong Kong, via mainland China, on 18 November 2013 and was arrested by the police on the same day.  He lodged his claim for cruel, inhuman or degrading treatment or punishment on 20 November 2013.  His claim was assessed on all applicable grounds under the unified screening mechanism upon its commencement on 3 March 2014.

5.The applicant’s claim is based on the fear that, if he returned to Pakistan, he would be harmed or killed by his uncle because of a land dispute between him and his uncle regarding the farmland of the applicant’s father.  The factual background was succinctly set out in [5] of Form CALL-1 ([2018] HKCFI 1902).

6.By two notices of decision dated 18 May 2016 and 20 March 2017, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds and decided against the application.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3], and the latter covered the BOR 2 risk[4].

7.The applicant lodged an appeal and petition against the Director’s decisions.  An oral hearing was held on 3 April 2017.  After hearing the applicant, the Board did not find him to be a credible witness.  It was found that there were multiple, material inconsistencies in his evidence.  The applicant also raised a new claim during the hearing, for which his explanation was unpersuasive.  The Board rejected his case in its entirety.  Furthermore, the Board considered an internal relocation to be a viable option.  The Board dismissed his appeal and petition on 19 April 2017.

The Judge’s decisions

8.On 29 December 2017, more than 8 months after the Board’s decision, the applicant sought leave from the court to apply for judicial review against it.  The applicant did not set forth any grounds for seeking the reliefs in his Form 86.  In his affirmation in support of the application, he simply deposed that he could not go back to his home country of Pakistan because his life there would not be safe.

9.The applicant did not request an oral hearing in relation to his application, and the Judge decided to deal with it on the papers.  After considering the legal principles for granting an extension of time, the Judge refused to do so.  Her reasons were set out in [10] of the Form CALL-1 as follows:

“In this case the Applicant was late by approximately four months and 16 days (sic)[5]. He has not offered any explanation for this delay. In view of that, he must satisfy the court that there are real prospects of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted. The latter does not need to be considered. There is no reason at all before the Court as to why an extension of time for leave to apply for judicial review should be given. The Applicant’s claim as summarised was rejected by both the Director and Adjudicator on wholly proper grounds. His application for judicial review, such as it is, is not reasonably arguable and does not have a realistic prospect of success. Accordingly, this application is dismissed as being out of time.”

10.On 13 December 2018, the applicant took out a summons for leave to appeal against the Judge’s decision out of time.  An oral hearing was held on 1 March 2019, at which the applicant was present.   After hearing from the applicant, the Judge refused to grant him leave to appeal out of time and dismissed the summons.  Her reasons for the dismissal were set out in [7] – [8] of her decision given on the date of the hearing ([2019] HKCFI 581), and were as follows:

“ 7. The applicant has now been in Hong Kong since 2013. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications. The address on his Form 86 was Room B, Flat F, 5/F, May Moon Building, No 50-68 Hop Yick Road, Yuen Long and that is the address to which the Call-1 Form and Order were sent to. He fully understood that the court required an up to date address in order to correspond with him. This is not the first time he has been late in making an application. The reason this application is late is to be put entirely at his own door. He was notified promptly of the decision of this court and, had he been living at his registered address, he would have been made aware of what was required of him should he wish to appeal that decision. It was incumbent upon him to do so promptly. He put himself in a position where that could not happen.

8. I have considered his underlying application.  It has no merit as explained in the initial refusal to extend time.  I canvassed it with him [o]nce more in court so as to provide an opportunity to suggest any possible complaint which he may have had in respect of the TCAB, he had none.  There were no grounds of review filed with his Form 86 and he can provide none now even with the benefit of assistance from the court in helping him understand judicial review.  Nor was there any complaint before the court as to the decision to refuse extension of time for judicial review.  The applicant merely wishes the Court of Appeal to consider his situation afresh.  The basis of the applicant’s claim below arose out of a personal inter-familial dispute over land and has no merit under the regime.  Having understood judicial review and accepted he had no complaint nor any grounds of appeal, the applicant nevertheless asked if he could appeal my decision today in any event.  There is no doubt he is playing the system and I asked him why he should not pay costs despite his apparent Form 8 status.  In response he claimed he had the assistance of friends to finance himself and could not oppose an award of costs against him.”

The present application

11.The applicant took out the present summons on 18 March 2019, in which he stated that due to the fact that he misplaced his decision letter, he was late in making the application.  He also stated that he would like to appeal against “his judicial review decision”.  The applicant deposed the same in his supporting summons of the same date.

12.In his written submission lodged on 23 April 2019, the applicant repeated his fear that he might be tortured or killed by his enemies if he returned to Pakistan.  In addition, he referred to the corruption of the Pakistani police and reiterated his wish to stay in Hong Kong. 

Legal principles

13.In considering whether to extend time for leave to appeal against an interlocutory decision, the court will have regard to: (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 was granted.

14.Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would also examine if he has merit in the intended appeal: see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.  The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge.

15.In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) It follows from the above that in an appeal, the scope for new arguments to be run is limited.  This Court will not generally entertain new arguments that are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

16.Although the length of delay was relatively short (2 days in making the application to the court in the first instance and 3 days in renewing the application before this Court), it has to be examined in the overall context where there had previously been an inordinate delay on the part of the applicant. The Board’s decision was made on 19 April 2017. His repeated delayed attempts to bring judicial proceedings had stalled the matter for more than 2 years.

17.We do not accept his explanation for the delay. Bearing in mind his previous experience, he should have proceeded promptly when the judge refused him leave at the hearing of 1 March 2019. 

18.In any event, there is no prospect of success in the intended appeal.

19.In the present case, the Board rejected the applicant’s claim for non-refoulement protection due to its adverse finding on the applicant’s credibility and its conclusion that internal relocation is viable.  These findings are within the province of the Board, and the court will not intervene by way of a judicial review unless the applicant can demonstrate that these findings should be reversed on public law grounds. 

20.The applicant failed to set forth any arguable public law grounds in his application for leave to apply for judicial review.  The Judge was fully justified in holding that there was no reasonably arguable basis for the applicant to bring a judicial review against the Board’s decision.

21.The matters put forth by the applicant in this written submission do not constitute viable grounds for leave to appeal. 

22.For these reasons, we are of the firm view that the intended appeal is totally without merit.  It is futile to grant leave to an appeal out of time in respect of an unmeritorious hopeless appeal.  Accordingly, we dismiss the applicant’s summons filed on 18 March 2019.

23.We also direct that, pursuant to Order 59 rule 2A(8) of the Rules of the High Court, the applicant may not apply for an oral hearing to reconsider his application.

The applicant acting in person