RE IRSHAD MUHAMMAD

CAMP 112/2018

[2019] HKCA 164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 112 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 783 OF 2017)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

1.  By a judgment dated 14 December 2018 ([2018] HKCA 864), this Court (Yeung Acting CJHC and Poon JA) dismissed the applicant’s application for leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 21 May 2018 refusing to grant him leave to apply for judicial review. The intended judicial review was against the decision of Torture Claims Appeal Board dated 25 August 2017 rejecting the applicant’s non-refoulement protection claim.

2.  By a notice of motion dated 27 December 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

3.  In the Notice of Motion, the applicant set out the following grounds:

“(1) It should not be the duty of the Judges of the Court of Appeal (when dealing with an application for extension of time) to consider the merits of appeal. This is because I only issued summons with a supporting affirmation that is with regards to the late filing.

(2) Since the Judges gave me the benefit of the doubt and find no fault on my part on the issue of delay, the case should proceed with instructions or directions given to me to provide further grounds of appeal.  There has been no request insofar regarding the grounds of appeal.  The Judges did not actually consider my appeal as there were no grounds put forward, nor was there a requirement that I should put them forward.  As I have mentioned in my written submissions dated 9 August 2018 at [12], ‘As the directions referred to written submissions in support of the summons whereby it was for an extension of time, I have only explained my reasons for the delay.  For any further information required such as the intended grounds of appeal, I crave leave from the Court to submit further submissions if required.’  It is therefore procedurally unfair and is an error in law that the Judges proceeded to determine my case without actually giving me leave to submit further submissions.”

4.  In compliance with the directions given by Master Au-yeung on 3 January 2019, the applicant lodged his written submissions on 10 January 2019.  In his written submissions, the applicant reiterated the grounds of appeal as set out in his Notice of Motion.

5.  We have duly considered the applicant’s notice of motion and his written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, this application is processed on papers without any oral hearing.

6.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.  The grounds advanced by the applicant is totally misconceived.  This Court had explained clearly at [14] to [18] of our judgment that the arguability of the intended appeal is an important consideration in an application for extension of time and why we were not satisfied that the applicant had reasonable argument in his intended appeal.  We do not see the grounds as set out in the Notice of Motion and the arguments in the written submissions have any reasonably arguable basis to challenge the findings of this Court.

7.  For the reasons that we gave in our judgment of 14 December 2018, we did not see any prospect of success in the applicant’s intended appeal against our judgment and/or the Judge’s order.  None of questions raised by the applicant in the notice of motion or in his written submissions involve an arguable point or a question of great general or public importance.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are not met.

8.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

CAMP 112/2018

[2018] HKCA 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 112 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 783 OF 2017)

__________________________

__________________________

____________________

J U D G M E N T

____________________

Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the Decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 21 May 2018 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of Torture Claims Appeal Board dated 25 August 2017 rejecting the applicant’s non-refoulement protection claim.

2.  On 17 July 2018, the Registrar of Civil Appeals directed that unless the applicant lodged his written submissions by 2 August 2018, he would be debarred from lodging any submissions in support of his application for extension of time.  Notwithstanding the said direction, the applicant failed to lodge any written submission by the deadline and only did so on 9 August 2018 without obtaining leave from the court.  As the delay is not substantial, we would allow the late lodging of the written submission. 

3.  Having reviewed the materials before us, we consider it is appropriate to determine the application without a hearing pursuant to Order 59 rule 2A(5)(a) of The Rules of the High Court (Cap 4A).

Background

4.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 20 August 2009 and was arrested by the police on the same day.  On 22 August 2009, he lodged a non-refoulement claim. 

5.  The applicant’s claim was based on his fear that (i) he would be harmed by Rana caste, Tufail and his sons because some Rana caste members convinced Tufail to frame up a false case of kidnapping against the applicant due to their respective grudge against him and (ii) he would be assaulted by the law enforcement authorities because he was falsely accused of being involved in the kidnapping case. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1064.

6.  By a Notice of Decision dated 27 May 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].

7.  By a Notice of Further Decision dated 9 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

8.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing on 4 October 2016, at which the Board considered both Decisions of the Director, it dismissed the appeal on 25 August 2017 (“Board’s Decision”).  The Board had carefully considered all the evidence and found that the applicant was egoistic in saying that he, being a Mughal caste person, excelled in his studies over Rana caste children thereby causing their parents to despise him because of his educational success.  It was highly incredible and unconvincing that the Rana caste people would frame him up in respect of Tufails’s missing daughter because he excelled in study and did not support the Pakistan People Party: see [26] – [33] of the Board’s Decision.  The Board found that the applicant’s account of event was illogical and implausible and he had not made out a case for his non-refoulement protection claim under all applicable grounds.

The Deputy Judge’s decision

9.  The applicant filed a Form 86 on 19 October 2017 which contained no ground for seeking relief.  In his supporting affirmation filed on the same day and exhibits “A1 – A5”, the applicant listed the following complaints :

(a)   Lack of legal representation

(b)   Lack of legal (language) assistance

(c)   Wrongful exercise of case management power

(d)   Lack of fair hearing

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 [30] to [50] of the CALL-1 Form:

“Discussion

30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

31. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5]

Ground (a): Lack of legal representation

32. The Applicant complained that he had not been provided with sufficient legal assistance.

33. In court, the Applicant confirmed he had legal assistance from the Duty Lawyer Service in 2015. However, there was no more legal assistance available to him after the Director had made his decision dated 27 May 2015.

34. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[6] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation in the later stages of the screening process. There is no substance in Ground (a).

Ground (b): Lack of language assistance

35. The Applicant complained that he had not been given sufficient interpretation/translation assistance.

36. In court, the Applicant admitted he had studied up to Year One in the university in business. He could grasp much of the English language though not mastering it. In the current application for leave for judicial review, he had a friend to help him to prepare Form 86 and the affirmation. The said documents were quite well-presented. Apparently, the Applicant could find someone to assist him with interpretation/translation and to deal with documents for him. I am sure that was the case at all material times. The Applicant has much exaggerated his problem of getting interpretation/translation assistance and handling documents. Ground (b) fails.

Ground (c): Wrongful exercise of case management power

37. The Applicant complained that the Adjudicator and the Director unreasonably found against him. I have reviewed the decisions of the Adjudicator and the Director under ‘rigorous examination and anxious scrutiny’. I find they had carefully considered the evidence and information relevant to the Applicant’s claim. They were entitled to make those findings, conclusions and decisions which were not Wednesbury unreasonable.

38. The Applicant said he had never received the Director's letter dated 18 May 2017, which invited him to submit additional facts for the consideration of BOR2 risk. He felt aggrieved for not having an opportunity to make submission on the BOR2 issue. He complained there was no further screening interview. He also complained the Director failed to provide explanation of his decision on BOR2 risk.

39. In court, the Applicant confirmed he had been living in Rome (Room) 2, Flat A. 6/F, Golden Crown Court, 66-70 Nathan Road since July 2016. It is baffling to hear that he was able to receive correspondence from this court but never received anything from the Director or the Board at the same address. I do not believe he did not receive the Director's letter dated 18 May 2017.

40. In any event, the Applicant confirmed in court that he had submitted all information and materials to the Director and the Board for their consideration of his non-refoulement claim. That means even if the Applicant’s claim of missed post was true, he was not prejudiced to any extent because he had already submitted all to the Director and the Board for their consideration.

41. The Applicant had no more to submit to the Director and the Board in relation to the BOR2 issue. There was no need for the Director and the Board to hold further hearing.

42. The Applicant also complained that the Director did not give reasons for his decision on BOR2 risk.

43. The Director’s further decision dated 9 June 2017 was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 27 May 2015, where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It is sufficient for the Director to express as he did in his further decision dated 9 June 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 27 May 2015. Ground (c) fails.

Ground (d): Lack of fair hearing

44. The Applicant criticised the Director for not attending the appeal hearing before the Board on 4 October 2016. He deduced that the Director was not concerned about his case.

45. I cannot see how the Applicant's claim had been prejudiced by the fact that the Director was excused from the appeal hearing before the Board. There is no substance in this criticism.

46. The Applicant further complained he was not given sufficient opportunities to make submission.

47. There is no evidence that the Applicant was prevented from making any submission as he wished. Having reviewed the Director's decisions and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’, I am satisfied that the Applicant had been given sufficient opportunities to state and elaborate his case. The Director and the Adjudicator had adhered to the high standards of fairness throughout. The Applicant’s complaints had no basis. Ground (d) fails.

48. In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Adjudicator, who had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed he was acquainted with the facts and applied the law correctly. The Adjudicator considered the Applicant's case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. He had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

49. The Director is an interested party in the current application. I have also reviewed the Director's reports under ‘rigorous examination and anxious scrutiny’. What has been said of the Adjudicator in para. 48 above is also true of the Director. I am satisfied that the Director had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

50. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the 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.  The appeal period expired on 4 June 2018 (as 3 June 2018 was a Sunday).  He failed to do so.  By a summons dated 12 July 2018, he applied for an extension of time to appeal.  His application for extension of time is supported by an affirmation of 13 July 2018 in which the applicant provided the following reasons for the delay:

“5. Unfortunately, I have not received the sealed order and call-1 form. I was unaware of the judgement until I went for my signing at the Castle Peak Immigration Centre and the Immigration officer informed me that a decision has been issued and my case was dismissed. I then attended the High Court Office personally to obtain a copy of the sealed order and call-1 form. By then the 14 days have passed;

6. I am uncertain why the mail was not delivered to me despite my best effort to provide an accurate mailing address.  I am also uncertain if the decision has been delivered to me or was in fact returned to the High Court.”

12.  The applicant did not produce any draft notice of appeal.

13.  In the written submission lodged on 9 August 2018, the applicant repeated his stance and reasons for delay as mentioned in his supporting affirmation as set out in paragraph 11 herein.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reason for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted.

15.  In this case, the applicant was late for more than 5 weeks and the length of delay is substantial.  The applicant explained that he did not received the CALL-1 Form despite his best effort to provide an accurate mailing address to the court. We note that the CALL-1 Form was sent to the applicant on 21 May 2018 with the address “Room 3, Flat A, 6/F, Golden Crown Court, No 66-70 Nathan Road, Tsim Sha Tsui, Kowloon” which was provided by the applicant on 8 May 2018.  On 8 August 2018, the applicant notified the court of his new address of “Room 603, Flat G, 6/F, Golden Crown Court, 68 Nathan Road, TST, Kowloon”.  The file record did not show any returned mail of the CALL-1 Form.  In the circumstances, the CALL-1 Form should have been sent to the correct address as provided by the applicant to the court on 8 May 2018 and now for some unknown reasons, the applicant claims that he did not receive it.  Even if we were to give the benefit of doubt to the applicant and find no fault on his part on the issue of delay, his application must for the reasons set out below fail. 

16.  It is trite that, the arguability of the intended appeal is an important consideration in an application for extension of time, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing)and another HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017.  The crucial consideration in this application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review.

17.  We now turn to assess the prospect of success of the applicant’s intended appeal against the Judge’s decision. 

18.  The applicant did not include any draft notice of appeal in his documents filed with the court.  In any event, after our review of the materials placed before the Judge, we agree with the Judge’s decision that the Board had achieved the high standards of fairness and was entitled to render those findings, conclusions and decisions which were all reasonable.  We do not see any error of law or procedures in the proceedings before the Board and agree with the Judge that leave to apply for judicial review should not be granted. In our judgment, the intended appeal is doomed to fail. 

19.  For these reasons, we would not grant an extension of time to the applicant to bring a hopeless appeal.  The summons dated 12 July 2018 is dismissed accordingly.

20.  We are of the view that the application is totally devoid of merits.  Pursuant to Order 59 rule 2A(8) of The Rules of the High Court, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.