Re Ali Saqib

CAMP 8/2020

[2020] HKCA 638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 8 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 244 OF 2017)

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Before: Hon Yuen and Barma JJA in Court

Date of Judgment: 5 August 2020

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.On 8 June 2018, DHCJ Bruno Chan (“the Judge”) refused to give the applicant leave to apply for judicial review proceedings concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 22 June 2018.

2.The applicant did not lodge an appeal in time.  It was not until 23 September 2019 (some 15 months after the deadline) that the applicant filed a summons in the Court of First Instance (“CFI”) for extension of time to appeal. That summons was dismissed by the Judge on 17 December 2019 (“the Extension Decision”).  

3.By summons filed in CAMP8/2020 in the Court of Appeal on 9 January 2020, the applicant applied to this court for an extension of time to appeal the JR Decision.   

4.Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing. The applicant did not file written submissions pursuant to the directions made by the Registrar of Civil Appeals.

Background

5.The brief background is as follows.  The applicant is a national of Pakistan and he alleges that he came to Hong Kong because he had been extorted for money by local gangsters at his mobile phone shop.  There were 4 incidents of extortion.  He and his partner made a report to the police after the 1^st and 4^th instances.  The police visited his shop, made notes and took statements from them.  However he did not consider those actions to be adequate, and decided to leave Pakistan about a month after the 4^th incident.      

6.The TCAB found that the applicant had not been harmed by the gangsters and there was no evidence showing that he would face any real risk of harm upon his return to Pakistan. His claim under the grounds of torture risk [50, 80], BOR3 risk [86], BOR2 risk [90] and persecution risk [94] were rejected by the TCAB (“the TCAB Decision”).

Application for leave to start judicial review

7.On 26 May 2017, the applicant filed a Form No. 86 to apply for leave to judicially review the TCAB Decision.  However, no grounds were advanced.  In his supporting affirmation, he alleged there was “still serious danger” to his life and he had requested his family to send him “proof”.  No such proof was provided within the year that elapsed between his affirmation and the time when the application was considered by the Judge.  As he did not request an oral hearing, his application was disposed of on paper.

The JR Decision

8.As mentioned earlier, the Judge refused leave for reasons set out in [10] - [13] of the Form CALL-1 ([2018] HKCFI 1250):

“10.  On 26 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but in it he did not put forward any ground for his intended challenge, nor did he in his affirmation of the same date other than just repeating his claim that it would be dangerous for him to return to Pakistan, that he had requested his family to send him further proof and that the court should review those decisions of the Director and the Board.

11.  Even now almost a year later in his leave application for judicial review the applicant did not produce any further proof referred to in his said affirmation in support of his case, and as noted by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the Director or adjudicator’s decision in dismissing the claims, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the decision-makers or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.

12.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

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

Legal Principles

9.In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

Discussion

10.As for (1), the delay between the JR Decision and his summons to the CFI for extension of time was 15 months, which is in any context, a serious and substantial delay. 

11.As for (2), he did not put forward any reasons for the delay before the Judge.  In the applicant’s affirmation filed in this court, he alleged: “…...  I am presently detained by the ImmD authorities. This is my application to apply for leave to appeal out of time against the Order made on 8^th June 2018 refusing my leave to apply for Judicial Review.  I was never served with the Order I realize that it is not sufficient that I am a litigant in person and unrepresented, thereby making me unaware of the rules.  It is on this basis that I ask the Court to exercise its discretion to allow me to appeal out of time.”  There is only his bare assertion that he had not been served with the JR Decision.  The court records show that the JR Decision had in fact been sent to him on 8 June 2018.  He provided no corroborative evidence which might explain why he did not receive it (eg change of address). Nor has he explained when and how he found out about the JR Decision. And it is notable that he had not put forward this allegation when he first applied to the CFI for extension of time.      

12.However, the most important consideration is (3) the prospect of success of the intended appeal.  Even now, he has not put forward any grounds of appeal.  Nor can we see any from the papers before us.  It is well-established that the application for leave to start judicial review is not a rehearing by the judge of the TCAB proceedings, and the function of this court is to consider any alleged errors on the part of the judge.      

13.Given that the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 9 January 2020.

14.Since the present application is totally without merit, we further make an order under Order 59 r.2A(8) RHC that the applicant may not request our determination to be reconsidered at an oral hearing. 

The applicant, unrepresented, acting in person.