Re Naseem Mohammad Ishaq

CAMP 111/2019

[2020] HKCA 996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 111 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 479/2017)

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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 Woodcock given on 23 March 2018 refusing leave to the applicant 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 12 May 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 7 June 2016 and 23 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 8 January 2016 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 11 January 2016. 

3.The applicant’s claim was based on threats from his business partner and his elder brother.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 form.

4.By a Notice of Decision dated 7 June 2016 (“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.The applicant appealed against the Director’s First Decision.  The Torture Claims Appeal Board (“Board”) dismissed the appeal without a hearing in its decision dated 12 May 2017.

6.At [25] of the Board’s Decision, the Board found that the applicant’s fear of harm is not well-founded.  The Board also held at [31] that the applicant failed to establish that state protection would not be available for him and held at [44] that internal relocation would be viable.

7.By a Notice of Further Decision dated 23 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

8.The applicant again appealed to the Torture Claims Appeal Board.  As the applicant was late in filing the Notice of Appeal/Petition, the Board had to decide under section 37ZT(2) of the Immigration Ordinance, Cap. 115 whether to allow the late filing of the notice.

9.After considering the applicant’s explanation for the delay, that he did not receive any letter because his address had changed, the Board held that the delay was inexcusable and refused to allow the late filing of the notice.  The Board handed down its decision on 25 February 2019. 

The judge’s decision

10.The applicant filed a Form 86 on 3 August 2017 which contained no ground for seeking relief.

11.In his affirmation in support of the leave application dated 3 August 2017, the applicant deposed that:

“I am not satisfied with the Decision made by the Director of Immigration and by the Torture Claims Appeal Board. I am extremely afraid of being killed by my elder brother (who have affiliation with the politicians of the current ruling party PML(N) and my business partner Mohammad Tahir who had gobble all my business assets”

12.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 [7] to [12] of the CALL-1 form:

“7.     The adjudicator determined the appeal/petition without a hearing. There is no absolute right to an oral hearing and he decided the appeal on the papers. The adjudicator correctly set out the law and legal principles relevant to the three applicable grounds he considered. He then set out how he arrived at the decision not to order an oral appeal hearing.

8.     He considered the principles guiding this decision set out by Cheung CJHC in ST v Betty Kwan & Ors, CACV 115/2013 at paragraphs 20 54. With particular reference to those paragraphs, he set out what considerations he found most relevant that led him to the decision that he could dispense with an oral hearing and still adhere to a high standard of fairness which is required in dealing with torture claims. He also considered that it was very relevant that when the applicant’s claim was dealt with by the Director, he was legally represented. He found in the name of overall fairness that the applicant had nothing useful to contribute by way of being heard if there was a hearing.

9.     Having read both the Director’s decision and the adjudicator’s decision, although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained. The adjudicator went on to show that he fully understood the applicant’s case and evidence, considered the law and legal principles before finding that the applicant was not at risk of torture if he returned to Pakistan, nor at risk of ill-treatment or CIDTP under BOR 3 nor had a well founded fear of being persecuted for a Convention reason. He confirmed the decision of the Director.

10.     The supporting affirmation contained no grounds and the applicant was given an opportunity in the oral hearing to submit grounds. His only ground was that it was unfair there was no oral hearing conducted for the appeal. He reiterated that his story was true but then the adjudicator had made no finding on credibility.

11.     Despite the fact the applicant put forward no substantial grounds to support his application, I nevertheless considered with rigourous examination and anxious scrutiny the adjudicator’s decision. I did not find any error of law by the adjudicator. I saw no evidence of procedural unfairness in his decision not to conduct an oral hearing. I did not see it as a failure to adhere to a high standard of fairness. The substantive decision was not Wednesbury unreasonable.

12.     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.”

13.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 23 March 2018.

Application for extension of time to appeal and grounds for appeal

14.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 13 March 2019, the applicant sought leave to appeal out of time, nearly a year after the application for judicial review was dismissed.  This application was dismissed by DHCJ Woodcock on 29 May 2019.

15.By a summons dated 3 June 2019, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, he stated that “I would like to have extension of time to appeal to leave for apply judicial review as I cannot receive any letter from the court until CIC Office told me that my case is finished”.

16.In the affirmation in support of the same date, he deposed that “I would like to reject and review the decision made by the court.  They disregard my dangerous situation and beside I have not receive any letter from the court until the CIC Officer tell me my case finished”.

17.Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 2 July 2019, the applicant was debarred from lodging any written submissions and the application has been dealt with on paper on the basis of the materials already filed before the court.

Discussion

18.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

19.We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  The applicant claimed that the delay was caused by the CIC Office but he failed to provide any particulars, such as the date when he claims that he came to know about the CALL-1 form.  We nonetheless go on to consider the merits of the intended appeal.

20.The applicant claimed that the court disregarded his dangerous situation.  In the application for leave for judicial review below, the applicant claimed that he feared the harm from his elder brother and his business partner without giving any particulars.  Further, as this court has repeatedly held, in an application for leave for judicial review an applicant has to identify the public law error committed by the Board and it is not sufficient to ask the judge to reconsider the merits of his claim.  It is thus not a viable ground of judicial review.

21.His only ground of judicial review, advanced in the hearing before the judge, was that the Board failed to give him an oral hearing.  The judge has dealt with this issue at [8] – [11] of the CALL-1 form. The applicant did not identify any error in the analysis by the judge nor do we see any error in this analysis.

22.We therefore do not see any prospect of success in the intended appeal, and will not grant an extension of time for a hopeless appeal.  The summons of 3 June 2019 is dismissed accordingly.

23.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