Re Amjad

CAMP241/2019

[2021] HKCA 316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 241 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 754/2017)

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J U D G M E N T

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The Court:

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 25 July 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 22 September 2017 and the decision of the Director of Immigration dated 26 January 2016 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 11 November 2015 and was refused permission to land.  He lodged a non-refoulement protection claim on the same day. 

3.The applicant’s claim was based on threats from a relative to his wife, who was a supporter of the Pakistan Tehreek-e-Insaf Party. The wife had turned down a proposal from that relative and chose to marry the applicant in 2009 instead.  The details of the applicant’s claim have been summarised by the Director of Immigration at [5] to [6] of his decision dated 26 January 2016.

4.By a Notice of Decision dated 26 January 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 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.

6.After considering the applicant’s explanation for the delay, the Board held that the delay was inexcusable and refused to allow the late filing of the notice (“the Board’s First Decision”). 

7.By a Notice of Further Decision dated 14 December 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

8.The applicant appealed against the Notice of Further Decision but he was 5 days late in so doing.  After considering the applicant’s explanation for the delay, the Board held that the delay was inexcusable and refused to allow the late filing of the notice (“the Board’s Second Decision”). 

The judge’s decision

9.The applicant filed a Form 86 on 10 October 2017 which contained the following grounds for judicial review:

(1)  the Director failed to appreciate the presence of state acquiescence in his case.  The applicant was tortured at the behest of and in full collusion of the police and law enforcement agencies. The state failed to provide reasonable protection for its citizens;

(2)  the Director wrongly relied on his pre-conceived notion on the police force in Pakistan in arriving at his decision;

(3)  the Board failed to appreciate that the appeal to the Board was delayed not by his mistakes; and

(4)  The Board failed to carry out sufficient inquiry.

10.In his affirmation in support of the leave application dated 10 October 2017, the applicant exhibited some documents in support.

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 [13] to [18] of the CALL-1 Form:

“13.  The test for granting leave is reasonable arguability and the burden is on the applicant. I have to consider several crucial issues and review the decision with rigourous examination and anxious scrutiny. I have to consider and ensure that there has been no deficiency in the process that the applicant has undergone which resulted in his claim being refused.

14.  I have considered the adjudicator’s decision-making process, the chronology and history of the application process and how he came to determine the decision of 22 September 2017. I do not find any error of law in his application of the Immigration Ordinance or the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme. I see no evidence of procedural unfairness nor a failure to adhere to the required high standards of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. In my judgement, the applicant’s claim against the adjudicator of the TCAB is not reasonably arguable.

The Director’s decision/26 January 2016

15.  As I said above, the court made its own enquiries and was informed by the Immigration Department that the applicant failed to appeal this decision in time and his late notice of appeal was rejected. Moreover, the applicant in this application has not put forward any good reason to apply for judicial review of this Director’s decision where the delay here is 17 months and two weeks. According to Order 53 rule 4, this application should be made within three months from the date of the decision and if there is a delay, there must be good reason for extending the period within which the application shall be made.

16.  The delay is significant, there is no application for an extension of time, there is absolutely no explanation for the delay and there is no good reason for extending time. The application, even on a review of the papers, does not raise any questions of general public importance. Delay alone is enough to dispose of this application.

17.  In summary, I refuse leave to apply for judicial review of the TCAB’s decision dated 22 September 2017 for the reasons above; it is not reasonably arguable.

18.  As for the Director’s decision dated 26 January 2016, I refuse leave to grant an extension of time to file an application for leave to apply for judicial review to seek relief against this decision.”

Application for extension of time to appeal and grounds for appeal

12.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 4 September 2018, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Josiah Lam on 17 September 2019.

13.By a summons dated 2 October 2019, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that he had not got the order in good time. 

14.In his affirmation of the same day filed in support of the application, the applicant gave the following grounds of intended review:

“1. no reasonable basis for rejecting his claim as incredible;

2. failure to consider extended state acquiescence;

3. failure to consider country-of-origin information (“COI”);

4. the decision-maker was not the interviewing officer. Failure to investigate into the COI;

5. failure to consider relevant information and placing undue weight on irrelevant information;

6. failure to consider human right violation and existence of state protection;

7. wrong consideration on irrelevant, inaccurate or incorrect facts;

8. failure to call for psychiatric and/or psychological reports;

9. applying the incorrect standard of proof;

10. no reasonable basis for rejecting his credibility

11. failure to consider the extended form of state acquiescence

12. failure to consider the COI reports in assessing risk to the applicant;

13. irregularity of the decision maker being a different person than the interviewing officer;

14.  wrong consideration on internal relocation.”

15.In his submissions dated 12 November 2019, the applicant submitted that:

(1)  the Board had unlawfully fettered its discretion by refusing his appeal on the ground that it did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner;

(3)  the Board’s decisions were unreasonable or irrational in the public law sense or the result of procedural errors;

(4)  the Board failed to apply the high standard of fairness

(5)  the applicant was not given enough time to prepare for the appeal since the hearing bundle was in English;

(6)  the Board significantly relied on sources of news not officially recognized or were hearsay or outdated resulting in the groundless speculation that it would be safe for him to return.

16.The applicant also referred to Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 and The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

Discussion

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

18.The applicant claimed that he checked his mail daily but he could not find the CALL-1 Form.  He did not provide any details or anything to support this contention. He did not explain how and when he eventually came to know about the CALL-1 Form.  The CALL-1 Form was sent by post on 25 July 2018 to the address he set out in his Form 86 and it was not returned.  There is no reason why he did not receive the same in the ordinary course of post. The vague and general assertion by the applicant that he did not receive the same in good time is not credible.

19.In the circumstances, the applicant did not have any reasonable explanation for his delay in bringing the intended appeal and the court will only grant extension of time if his appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re MA [2019] HKCA 1020.

20.None of the grounds of appeal is directed towards errors of the judge.  They are all related to alleged errors of the Board and the Director. Insofar as they had been raised below, they had been addressed by the judge. The submissions did not engage with the reasons given by the judge in refusing to grant leave.  As this court have often stated, an appeal is not a further opportunity to regurgitate what had been advanced but rejected in the court below. In an appeal to this court, it is necessary for the applicant to identify errors made by the judge. The skeleton submissions do not provide any viable grounds of appeal in this respect.

21.Insofar as the grounds had not been raised before the judge, this court should be cautious against allowing an applicant to advance new grounds for judicial review in an appeal because it would defeat the policy underlying the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).  This is particularly so when the applicant did not explain the reasons for not raising these new grounds at the court below.

22.In any event, the new grounds have no merit. They are all bare assertions not supported by the necessary particulars and evidence. As such they cannot constitute effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

23.Further, some new grounds seemed to proceed on the basis that the Board’s Decisions were on the substantive merits (which they were not) as opposed to decisions refusing to entertain the appeals.

24.As we do not see any prospect of success in the intended appeal, we will not grant extension of time for a hopeless appeal.  The summons of 2 October 2019 is dismissed accordingly.

The applicant acting in person