Waheed Ahmad v. Director of Immigration

CAMP 174/2020

[2021] HKCA 561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 174 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 43 OF 2018)

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Before: Hon Kwan VP and Chu JA in Court

Date of Judgment: 28 April 2021

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 21 December 2018, Deputy High Court Judge Bruno Chan refused to grant extension of time for the applicant to apply for leave to seek judicial review of the decision of the Director of Immigration (“the Director”) concerning his non-refoulement protection claim and dismissed the application for leave to bring judicial review[1].

2.On 21 May 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 4 January 2019.  The application was heard by DHCJ Bruno Chan on 20 August 2020 and dismissed on 11 September 2020[2].

3.On 24 September 2020, the applicant took out this renewed application for extension of time to appeal against the judge’s decision of 21 December 2018.

4.The applicant is a national of Pakistan.  He is 49 years old.  He entered Hong Kong illegally on 2 April 2008 and was arrested by the police on 4 April 2008.  He raised a torture claim on 19 April 2008 on the basis that if he returns to Pakistan he will be discriminated, harmed or killed by the Shia people as he is a member of a Sunni organization and/or pursued by the police over certain charge against him.

The Director’s decision

5.His torture claim was treated as a non-refoulement claim under the unified screening mechanism.  By a Notice of Decision dated 20 December 2016, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk[3], BOR 3 risk[4], torture risk[5] and persecution risk[6]. 

The Board’s decision

6.The applicant appealed against the Director’s decision to the Torture Claims Appeal Board (“the Board”).  On 3 February 2017, he wrote to the Board to withdraw his appeal.  The Board accepted his request and dismissed his appeal accordingly on 17 February 2017. 

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 9 January 2018 to seek leave to apply for judicial review against the decision of the Director.  He put forward the following grounds for his intended challenge:

(1)  the Director erred by failing to maintain high standard of fairness in not holding an oral hearing to allow the applicant to put forward his case;

(2)  the Director failed to maintain the minimum standard of procedural fairness in his decision-making process; and

(3)  the Director failed to inform him that he could complain.

The judge’s decision

8.As the applicant was absent at the hearing scheduled before DHCJ Bruno Chan on 7 September 2018, the judge considered the application on the papers.  The judge found that the applicant does not have good reason which would justify the delay of more than nine months in filing the leave application.  The judge further held that the applicant’s grounds are just broad and vague assertions without any particulars or specifics or elaborations as to how they apply or are relevant to his case and how the Director had failed to apply high standard of fairness or to maintain the minimum standard of procedural fairness.  The judge was not satisfied that there is any prospect of success in the intended judicial review and refused the leave application on 21 December 2018.

Grounds of intended appeal

9.The applicant did not give any particular grounds of appeal in his summons and affirmation.

10.As the applicant has failed to comply with the unless order made by the Registrar of Civil Appeals on 2 December 2020 to lodge his written submissions within the prescribed time, he is deemed to be relying only on the representations made in his summons and affirmation.

Analysis and disposition

11.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 21 December 2018.  The applicant took out a summons at the court below on 21 May 2020.  He was late by more than 16 months.

13.The applicant explained in his affirmation that he was late due to the lack of knowledge and insufficient resources.  He also submitted at the hearing in the court below that he did not receive the decision until he was later informed by the Immigration Department, by then he was already way out of time.  It is noted that the applicant collected the judge’s decision on 20 March 2019[7]. There is no justifiable reason for such excessive further delay after he had received the decision. 

14.As his delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

15.In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.In the present application, the applicant did not put forward any ground of appeal.  He failed to show he has any prospect of success in the intended appeal.

18.We therefore refuse to extend time to appeal and dismiss the summons filed on 24 September 2020.

The Applicant, acting in person

[1] [2018] HKCFI 2803

[2] [2020] HKCFI 2233

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] See Confirmation of Receipt signed by the applicant dated 20 March 2019