Re Bilal

CAMP 31/2020

[2020] HKCA 1047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 31 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 318 OF 2018)

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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 3 January 2019, 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 17 January 2019.

2.The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 14 February 2019 for extension of time to appeal (which was late by about 1 month).  That summons was dismissed by the Judge on 7 May 2019. 

3.However, it was not until 7 May 2020 that the applicant filed his summons in CAMP 31/2020 in the Court of Appeal applying 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 filed his written submissions on 4 August 2020 pursuant to directions made by the Registrar of Civil Appeals.  

Background

5.The brief background is as follows.  The applicant is a national of Pakistan.  The following are his allegations.  He claimed he supported the political party Pakistan Muslim League (Nawaz) (“PMLN”) since April 2014 and assisted them to organize party activities and rallies. He was approached by 5 supporters of Pakistan Tehreek-e-Insaf (“PTI”) carrying pistols who threatened him and demanded he join the PTI.  He reported his case to the police but they did not do anything to assist him.  A few months later, the applicant was standing on a ladder when he heard a few shots fired by the PTI supporters towards his direction.  He was not injured by the shots, but he fell to the ground and hurt his arm.  He sought help from the PMLN office but he did not report the incident to the police as he believed that the police would not help him.  As he had heard that the PTI supporters were frequently loitering around his house, he left for Runchor Land and stayed with his friend for 6 to 7 months.  He was informed by his family members that the PTI supporters were still searching for him.  He then left Pakistan on 8 September 2015 and entered Hong Kong illegally from mainland China on 18 September 2015.  On 28 October 2016, he was arrested for drug trafficking and was sentenced to a total of 22 months’ imprisonment on 12 December 2016.

6.The applicant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision (as defined in [8] herein below) and in gist in the JR Decision. 

7.The applicant gave evidence before the TCAB.  The Board member questioned him and found his evidence was inconsistent and lacked credibility (see the TCAB’s analysis at [65] – [70]).  In any event the TCAB found there was no real risk that he would be targeted for serious harm in the reasonably foreseeable future if he returns to Pakistan [74].

8.His claim was dismissed by the Torture Claims Appeal Board on 22 February 2018 (“TCAB’s Decision”).

Application for leave to start judicial review

9.On 28 February 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the TCAB’s Decision.  The grounds put forward by the applicant were summarized by the Judge in [11] of the JR Decision:

“(1) that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2) that their decisions were unreasonable and unfair under the Wednesbury test;

(3) that they failed to take into consideration that right to life must be protected from extra-judicial killings that the applicant may face if he is deported to Pakistan; and

(4) that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence to support his non-refoulement claim and his appeal.”

The JR Decision

10.As mentioned earlier, the Judge refused leave for reasons set out in [12] - [17] of the Form CALL-1 ([2018] HKCFI 2809):

“12. These are however just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unreasonable or unfair under the Wednesbury test, or how were extra-judicial killings relevant to his case.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13. As for his complaint of not being given sufficient time or opportunity to provide relevant evidence in support of his claim and his appeal, again he failed to provide any particulars or elaborations as to how that being so, of which he never raised any issue nor request for further time during his appeal before the Board or at his oral hearing before the adjudicator.  Even now in his application and oral hearing before me, he did not provide any additional evidence or make any further representation in respect of his claim.  In the premises I do not find any merit in this complaint of the applicant.

14. The fact is that the applicant’s claim was rejected by the Board on credibility based on the evidence and materials available to the adjudicator with the benefit of hearing him in evidence and for the detailed analysis and reasoning set out in paragraphs 41 – 75 of the decision, in which the applicant has failed to clearly or properly identify any legal errors or procedural unfairness or irrationality other than those vague assertions as above without any particulars or elaborations.   

15. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error being identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

16. In the premises and having proceeded to consider 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.

17. 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

11.As noted earlier, the applicant did not apply to this court for an extension of time to appeal until 7 May 2020.  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, although the absence of prejudice does not mean that an extension should be granted.

Discussion

12.As for (1), a year had elapsed between the time of the Judge’s refusal of an extension of time to appeal and the summons filed in CAMP 31/2020. 

13.As for (2), the reasons for the delay, the applicant said in his affirmation filed in the Court of Appeal that:

“I am the Applicant herein. 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 3^rd January 2019 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. However, I have since taken legal advice and I understand that there is a good ground of appeal that was no necessarily considered at the stage of applying for leave for judicial review. I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal out of time. I did not receive any correspondence from the Court regarding the Judicial Review be dismissed for want of prosecution as I am presently detained by the ImmD authorities. I humbly request the court to allow my appeal out of time and give me a chance to explain.” (sic)

14.The applicant did not state when he was first detained, nor how that affected the making of his application to this court.  Moreover, he sought to explain the delay by saying that he was never served with the Order made on 3 January 2019.  However, this is inconsistent with what he said before the Judge as noted in [4] of the Decision of 7 May 2019 that he admitted receiving the decision on 3 January 2019 but had not been aware that he needed to file the notice of appeal within 14 days. 

15.However, the most important consideration is (3) the prospect of success of the intended appeal.  As the Judge noted in [12] of the JR Decision, the applicant had only stated broad and vague assertions in his Form 86 without any elaboration or having presented the court with any particulars or specifics.  Also, the applicant failed to provide to the Judge or this court any proposed grounds for his intended appeal.  In his summons, he referred to “a new ground of appeal”, but it is not formulated.  His written submissions are vague and bare assertions which do not support his intended appeal.

16.It is well-established that the application for leave to start judicial review proceedings is not a re-hearing 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.  We do not see any in this case.    

17.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 7 May 2020.

18.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.