Re Iftikhar Ali

CAMP249/2019

[2021] HKCA 318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 249 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 932/2017)

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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 Campbell-Moffat J given on 29 November 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 (“Board”) dated 3 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 4 January 2016 and 8 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 11 March 2014 illegally and was arrested by the police on 5 April 2014.  He lodged a non-refoulement claim on 8 April 2014. 

3.The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [4] to [6] of the CALL-1 Form.

4.By a Notice of Decision dated 4 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.By a Notice of Further Decision dated 8 December 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 10 April 2017, the Board dismissed the appeal on 3 November 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [48] of the Board’s Decision, the Board found that the applicant’s case was not credible. 

The judge’s decision

7.The applicant filed a Form 86 on 23 November 2017 which contained no ground for seeking relief.

8.In his affirmation in support of the leave application dated 23 November 2017, the applicant deposed that:

“The decision taken by the [Director and the Board] for my application for seeking non-refoulement protection in Hong Kong is not correct. They have failed to consider the ground realities in Pakistan before reaching at their decisions”

9.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.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 [15] of the CALL-1 Form:

“13. There were no formal grounds of review. In his affirmation in support, he states that neither the Director nor the Adjudicator considered the ‘ground realities’ in Pakistan. He has not identified any particular procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

14. Despite the fact that the Applicant did not submit any proper grounds of review, I have considered the papers and single ground of review carefully. There is no basis whatsoever for suggesting that the Director or Adjudicator failed to properly take into account the situation in Pakistan pertaining at the time of the screening and hearing. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. The documentary basis for their decisions was appended to their decisions and, if incorrect or out of date, the Applicant could have identified where that was the case. The onus was on the Applicant. Despite that onus, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

15.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Application for extension of time to appeal and grounds for appeal

11.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 23 August 2019, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 25 September 2019.

12.By a summons dated 9 October 2019, the applicant applied for leave to appeal against the judge’s decision to refuse leave to appeal out of time on 25 September 2019.

13.In his affirmation of the same day filed in support of the application, the applicant contended that:

(1)  the applicant had been deprived of the opportunity to understand the judgments and make proper grounds of appeal;

(2)  the applicant mistakenly believed that when he updated his information with the Immigration Department, the same would have been updated in the court’s record as well;

(3)  the judge was biased against him. There was no basis for the judge to find that he had been less than full and frank to the court;

(4)  the judge ought to have given him an oral hearing before dismissing his application for leave for judicial review;

(5)  the applicant is not aware of the judgment in the CALL-1 Form because he did not receive the mail.  The applicant did not intentionally delay the commencement of the intended appeal; and

(6)  the applicant should be given a re-hearing of his claim with an interpreter.

14.In his skeleton submissions lodged on 28 October 2019, the applicant reiterated the matter in his affirmation dated 9 October 2019.

Discussion

15.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

16.In cases where (like the present case) the judge refused to grant extension of time to appeal, the proper application for an applicant to make is to renew such application before this court instead of appealing against the refusal to grant extension of time: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104.  We therefore treat the application in the summons dated 9 October 2019 as a renewed application for extension of time to appeal.

17.The applicant’s reason for the delay in bringing the intended appeal set out in the documents filed with this court and his explanation before the judge (as summarized by the judge in [5] of the decision on 25 September 2019) were not credible.  The applicant only has himself to blame for delay occasioned by his failure to update his address with the court.  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 prospect has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re MA [2019] HKCA 1020.

18.The applicant was not given an oral hearing for his application for leave for judicial review because he did not request for one in his Form 86.  RHC Order 53 r.3(3) provides that the judge may determine the application for leave without a hearing unless a hearing is requested in the notice of application. This ground is therefore without merit.

19.Having considered the judgment in the CALL-1 Form and the decision dated 25 September 2019, we do not accept that the applicant has made out a case of bias on the part of the judge.

20.We do not accept that the applicant has any genuine difficulty in understanding the CALL-1 Form. He had no difficulty in making detailed and coherent submissions against the judge’s decision to refuse leave to appeal out of time. 

21.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 9 October 2019 is dismissed accordingly.

The applicant acting in person