Re Khan Mushtaq

CAMP 5/2021

[2021] HKCA 1073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 5 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 476 OF 2019)

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Before:  Hon Poon CJHC and Barma JA in Court

Date of Judgment:  30 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 Deputy High Court Judge K W Lung given on 12 May 2020 refusing to grant extension of time for the applicant’s application for leave for judicial review and dismissing his application for leave 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 (“the Board”) dated 28 April 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 8 December 2015 and 14 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 31 October 2013 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 5 November 2013. 

3.The applicant’s claim was based on threats from his relatives arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 Form.

4.By a Notice of Decision dated 8 December 2015 (“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 14 November 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 29 November 2016, the Board dismissed the appeal on 28 April 2017 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.The Board found that the applicant is unlikely to be subject to any of the proscribed risks of harm from his relatives upon his return.  The Board also found that he was unlikely to be held responsible for a bombing which occurred in Pakistan in 2013.  The Board was also satisfied at [73] and [77] that the applicant is not unlikely to be able to access state protection locally and at [92] – [93] that internal relocation would be viable.

The judge’s decision

8.The applicant filed a Form 86 on 19 February 2019 which contained the following grounds for judicial review against the Board’s Decision, as summarized by the judge at [11] of the CALL-1 Form:

(1)  The Board did not advise him to obtain medical report in support of his claim, but it said that “it is not likely that pain or suffering sufficiently severe as to amount to torture would be inflicted” in paragraph 75 of the Board’s Decision.

(2)  His family was recently arrested for the accused Bomb Blast and he would be arrested if he returned to Pakistan.

(3)  Medical reports should support Torture risk as decided in Mallawa Arachchige Amitha Priyanganie Mallawa Arachchi v Wesley Wong Esq. [2014] HKEC 1490.

9.In his affirmation in support of the leave application filed on 19 February 2019, the applicant exhibited the relevant documents without giving any ground of judicial review.

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 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 [12] to [20] of the CALL-1 Form:

“12. The applicant appeared before this Court and confirmed that he was able to express himself freely and fully before the Immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decisions to him. His friend explained the Board’s Decision to him.

13. He was aware that his application was late. The Board’s Decision is dated 28 April 2017 and he filed Form 86 on 19 February 2019, a delay of more than 21 months. He gave the explanation that he did not receive the Board’s Decision, not until he attended the Immigration Department for reporting and he was notified that the Board had rejected his appeal. He did not say that he had changed his address. I do not find this explanation attractive.

14. In Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28, the Court of Appeal held that the applicant cannot proceed with the application for leave to apply for judicial review without extension of time for them to file their application out of time.

15. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

16. I put the Board’s findings above to him and ask him for his comments. He said that he did not have any comments.

17. Ground (1) fails as the Board has no duty to give him legal advice. The burden is on the applicant to prove his case. High standards of fairness only require the Board to assist him to obtain information or evidence if he raised it before the Board. He did not raise this issue at the hearing. Ground (3) fails as well.

18. There is no evidence as to why his family was arrested for the accused Bomb Blast. The Board had found that this evidence was not credible. See paragraph 68 of the Board’s Decision. Ground (2) fails.

19. I find that the applicant is unable to show that his intended appeal has any reasonable prospect of success.

CONCLUSION

20. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to extend time for him to file his application for leave to apply for judicial review out of time. Accordingly, I dismiss his application.”

Application for extension of time to appeal and grounds for appeal

11.Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 27 May 2020, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ C P Pang on 23 December 2020.

12.By a summons filed on 4 January 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“I want to challenge the decision of the High Court. Because I applied for leave to apply for judicial review which one is refused.”

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

“…the judge gave wrong decision. I want to challenge his decision.”

14.In his skeleton submission dated 10 March 2021, the applicant explained why he would face danger to his life upon return to Pakistan and submitted that:

“…I came the High Court and applied for leave of judicial review, but the High Court refused. I did not get any letter from the High Court, so I could not appeal timely. I request to the Court to extend my time to appeal.”

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 the summons dated 27 May 2020 filed in the court below for extension of time to appeal, the applicant claimed that “I have missed the time to apply in time. Because I got this judgment 26.05.2020 in my mail box.  Though this is my wrong, I request to give me a chance.”  In the skeleton submission, the applicant advanced a different story and claimed that he did not get any letter from the High Court.  The applicant did not explain the inconsistencies and we are not satisfied either version of the events offered by the applicant was true.  We are therefore of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.

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

18.The applicant only stated that he was not satisfied with the decision by the judge and that leave for judicial review ought to have been given because it is unsafe for him to return, but he did not identify any error on the part of the judge. The applicant 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.

19.As for the bare assertion by the applicant that it is unsafe for him to return, this is not itself a valid ground for judicial review or ground of appeal.  In any event, we note that the Board has already found that he is not likely to be subject to any of the proscribed risks of harm and in any event he could safely relocate to other parts of Pakistan.  Because the applicant failed to substantiate any public law error in the Board’s Decision, there is nothing to challenge the finding by the Board in this respect.

20.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 January 2021 is dismissed accordingly.

21.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