Re Jami Mahmood

CAMP 205/2020

[2021] HKCA 993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 205 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 930 OF 2017)

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Before:  Hon Poon CJHC and Barma JA in Court

Date of Judgment:  19 July 2021

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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 7 August 2020 dismissing the applicant’s application for leave to apply for judicial review.  The applicant did not identify the decision for judicial review but his application was taken to be against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 21 June 2017 because the applicant referred to his claim for non-refoulement protection in the affirmation in support of the leave application.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 20 June 2006 illegally and was arrested by the police on the same day.  He lodged a torture claim which was rejected by the Director on 5 October 2012.  His appeal against that decision was refused on 4 December 2012.  He lodged a claim for non-refoulement protection on 22 February 2013.

3.The applicant’s claim was based on threats from members of an opposing political party and the Pakistani police.  The details of the applicant’s claim have been summarised by the judge at [5] to [6] of the CALL-1 Form.

4.By a Notice of Decision dated 21 December 2015 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk[1] and the persecution risk[2].

5.By a Notice of Further Decision dated 5 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[3], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 1 June 2017, the Board dismissed the appeal on 21 June 2017 (“the Board’s Decision”).

7.At [66] of the Board’s Decision, the Board found that the applicant was not a credible witness.  The Board was also satisfied at [83] that state protection would be available for the applicant and at [89] that internal relocation would be viable.

The judge’s decision

8.The applicant filed a Form 86 on 22 November 2017 which contained no ground for seeking relief.  The applicant also did not identify the decision he wanted to judicially review.

9.In his affirmation in support of the leave application filed on 22 November 2017, the applicant stated that it was not safe for him to return and that his wife and children were in Hong Kong.  He should not be punished for what he did not do and he needed time to provide evidence related to his case.

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

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 extend time for applying for leave for judicial review and dismissed the applicant’s application for leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [7] to [13] of the CALL-1 Form:

“7. In accordance with Order 53, rule 3, the applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review. This was dated 22 November 2017. Under Order 53, rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. Where the relief sought is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from 21 June 2017 and expired on 21 September 2017.

8. It is incumbent upon the applicant to provide good reason for extending time. The applicant has submitted no explanation for his delay and has not sought leave for an extension of time. I have nevertheless considered the principles applicable to granting such an extension if an application had been made and those are:

1)  the length of delay;

2)  the reasons for delay;

3)  the prospects of success in the intended appeal; and

4)  the prejudice to the putative respondent and administration of justice if extension of time were granted.

9. In this case, the applicant was late by two months and one day and has not offered any explanation for this delay. In view of the absence of good reason (or indeed any reason)  for the delay in filing his Form 86, he must satisfy the court that there is a reasonable prospect of success in his intended leave application and that there will be no prejudice to the putative respondent or administration of justice if an extension of time were to be granted. As to the latter, there is no suggestion there would be any such prejudice, save that it is in the interest of justice for matters subject to judicial review to be dealt with expeditiously. This application therefore turns upon the likelihood of success of his application for judicial review.

10. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with. It can therefore only be an application to apply for leave to judicially review the Decision of the Adjudicator. The applicant must therefore show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain an extension of time to seek leave to judicially review that Decision.

11. All of the papers considered by the Director, were before the Adjudicator. There were a considerable number of them. He arranged for an oral hearing at which the applicant was legally represented and had an interpreter. The applicant relied upon the papers before the TCAB and gave evidence. He outlined the abuse he received within the police station but did not describe the actual injuries received. Despite his father having been a life-long member of SES and the applicant becoming a member of SES, his knowledge of the organisation was scant. He was not considered a credible witness. In any event, the Adjudicator considered the relevant COI and the facts of the claim but the applicant had not satisfied the burden of proof placed upon him for the reasons given which were reasonable and arrived at after a fair hearing.

Conclusion

12. In the absence of any reason for the delay and any grounds of review, the court is left with the bare facts as relied upon by the applicant and the application of the law to those facts by the Adjudicator along with the explanation given by him within the Decision. Having analysed that Decision, the applicant’s claim is not credible and was rejected on that basis after due process. 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 an extension of time to apply for leave to judicially review that Decision.

13. This application is refused.”

Application for extension of time to appeal and grounds for appeal

12.By a summons dated 26 August 2020, the applicant sought leave to appeal out of time before the judge.  The applicant was not in fact out of time for bringing the intended appeal and he did not need to apply for extension of time from the court below. It is because by section 31(1)  of the High Court Ordinance (Cap 4), time for service of the appeal does not run in the summer vacation unless the court otherwise directs.  The month of August is the summer vacation of the court and time does not run in August ([8.1] – [8.4] re: Rana Jaswant [2019] HKCA 102; [2019] 2 HKLRD 347). Thus the time to appeal against the decision of 7 August 2020 did not expire until 14 September 2020 which is 14 days after the end of the August vacation.

13.Had his application been heard before 14 September 2020, the judge could have simply made no order on the application.  This, however, was not the case.  His application was heard on 8 October 2020 by which time to serve the notice of appeal had expired and inevitably the judge had to consider the application. His application was dismissed by the judge on the same day.

14.By a summons filed on 4 November 2020, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“I am late for apply due to lack of knowledge and insufficient sources. Please accept my late filing application so that I can process my case further. I hope I will get your favour.”

15.In the affirmation in support filed on the same day, the applicant deposed to the same matter raised in the summons.

16.Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 29 January 2021, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

17.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 of the Rules of the High Court.

18.The applicant claimed that he did not have knowledge or sources and he was therefore late to bring the intended appeal.  The applicant did not provide any particulars or elaboration on how it contributed to the delay and we are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.

19.We nonetheless go on to consider the merits of the intended appeal.

20.The applicant failed to identify any error on the part of the judge.  He has therefore failed to advance any viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

21.We therefore 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 4 November 2020 is dismissed accordingly.

22.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, unrepresented, acting in person