RE HABIB MUHAMMAD

CAMP 202/2019

[2020] HKCA 634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 202 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 1158 OF 2017)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Yuen JA (giving the Judgment of the Court):

1.  This court (Hon Yuen and Barma JJA) handed down judgment on 10 January 2020 ([2020] HKCA 34) dismissing the applicant’s application to extend time to appeal an order of DHCJ Josiah Lam (“the Judge”) given on 30 July 2018 refusing to give leave for judicial review in respect of his non‑refoulement claim. The applicant had taken out a summons on 11 September 2018 for extension of time to appeal, which the Judge dismissed on 9 August 2019. The facts and issues in the appeal before the Court of Appeal, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

2.  Under the rules, the deadline for the applicant to file a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal was 28 days from our judgment of 10 January 2020 (i.e. 7 February 2020).  The applicant subsequently filed his Notice of Motion on 12 May 2020.  He stated in his affirmation filed on the same day that his filing was out of time because the court was closed and he had come several times for filing of the Notice of Motion. 

3.  As the appeals registry was closed from 29 January 2020 to 3 May 2020 due to the public health situation in Hong Kong, we shall deduct this period from the calculation of time, with the result that his Notice of Motion was filed on time.

4.  However, the applicant did not comply with the directions given by the Registrar of Civil Appeals on 20 May 2020 to file written submissions by 26 May 2020, nor did he comply with the Unless Order given by the Registrar of Civil Appeals on 27 May 2020 which extended the time for him to file written submissions by 12 June 2020.  As explained in the Unless Order, the applicant is consequently debarred from lodging any written submissions, and this Notice of Motion is therefore determined on paper without an oral hearing, which we consider appropriate.     

5.  In the applicant’s Notice of Motion, he complained that the Determination (presumably meaning the 2018 Decision as defined in para. 2 of our Judgment) was not translated or read back to him, and he had been deprived of the chance to put forward his grounds in his own language.  We have dealt with this complaint in para.18 of our Judgment and will not repeat it here.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that leave to appeal to the Court of Final Appeal may be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal. 

7.  No question of great general or public importance has been identified in the Notice of Motion. 

8.  Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b). 

9.  By reason of the above, the Notice of Motion filed on 12 May 2020 is dismissed. 

CAMP 202/2019

[2020] HKCA 34

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 202 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 1158 OF 2017)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Yuen JA (giving the Judgment of the Court):

1.  By summons filed on 21 August 2019, the applicant applied for leave to appeal the order of DHCJ Josiah Lam (“the Judge”) dated 9 August 2019 (“the 2019 Decision”).

2.  The Judge had in a decision given on 30 July 2018 (“the 2018 Decision”) refused the applicant leave to apply for judicial review concerning his non‑refoulement claim.  Under Order 53 rule 3(4) Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  The deadline was therefore 13 August 2018.  The applicant did not lodge an appeal in time.  

3.  Nearly a month later, on 11 September 2018, the applicant applied to the judge for an extension of time to appeal the 2018 Decision. That culminated in the 2019 Decision. 

4.  In effect, the present application is for this court to extend time to appeal the 2018 Decision. That is also shown in para 3 of the applicant’s affirmation filed on 11 September 2019.

5.  An unless order was made by the Registrar of Civil Appeals on 16 September 2019 that the applicant should lodge his written submissions by 4:00 p.m. on 2 October 2019.  That was not done, so the applicant is taken to be relying only on the summons and affirmation.

6.  Under Order 59 rule 14A(1) Rules of the High Court, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Legal Principles

7.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

Discussion

8.  As for (1), the delay was of nearly a month.  In the context of the relatively short period of time for appealing (14 days), it is a not insubstantial delay.  As for (2), the reasons for the delay, the applicant said in his affirmation of 11 September 2018 (typed in English) that he was illiterate and could not communicate with the Resource Centre for Unrepresented Litigants, and had to seek help “from various places” in order to understand the 2018 Decision.  However, he has not explained how and when he was able to obtain assistance from these places to prepare his affirmation, and whether he could have done so before the deadline if he had acted timeously.     

9.  However, the most important consideration is (3) the prospect of success of the intended appeal.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (“the TCAB”) dated 24 November 2017 (“the TCAB’s Decision”) dismissing his appeal against the decisions of the Director of Immigration of 17 August 2016 and 6 April 2017 (“the Director’s Decisions”).

10.  The brief background is as follows.  The applicant is a Pakistani national now aged 42.  He entered Hong Kong illegally by boat on 18 March 2016 and was arrested by the police on the same day.  He raised a non-refoulement claim.

11.  The applicant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what he alleged was that he is a supporter of the Pakistan People’s Party (“PPP”), and if he were to return to Pakistan, he would be killed by the supporters of the Pakistan Muslim League (N Group) (“PMLN”) for his refusal to join PMLN, the opponent of PPP. 

12.  By the Director’s Decisions, the Director rejected the applicant’s claim on the grounds of BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

13.  The applicant’s appeal to the TCAB was heard on 13 November 2017.  At the hearing, the applicant elected not to give evidence and declined to answer the questions raised by the TCAB ([40]-[43]).  That being his choice, the TCAB proceeded with the materials provided on the papers. 

14.  Even on his own case, the applicant did not hold any position in the PPP and had not been a longstanding supporter [7].  A false report of assault made against him in 1995 by PML(N) supporters was dismissed by the court [10].  He alleged in 2014, he was assaulted but not injured by some PML(N) supporters, and he did not report the matter either to the police or even the village head [11-18].  Then in 2015, some PML(N) supporters orally threatened to kill him if he did not quit PPP to join them.  They did not assault him.  Again, he did not report the matter to the police or the village head [19-23].   

15.  However, the TCAB found that the applicant’s case in relation to the details of the incidents above was inconsistent and unreliable ([46-48]). The TCAB did not accept that the applicant was assaulted and threatened by PML(N) supporters, or otherwise ill-treated.  The TCAB concluded that the applicant had not been subjected to ill-treatment in the past which reached a degree of severity required to establish a non-refoulement claim ([52]).  The TCAB dismissed the applicant’s appeal.    

Application for leave to start judicial review

16.  On 29 December 2017, the applicant filed a Form No. 86 together with his supporting affirmation to apply for leave to judicially review the TCAB’s Decision.  The grounds in his affirmation in support were summarized by the Judge in the 2018 Decision in [26]: (a) lack of legal representation, (b) lack of language assistance, (c) wrongful exercise of case management power, and (d) lack of fair hearing.  At his request, the application was listed for an oral hearing before the Judge with assistance from an interpreter. 

The 2018 Decision

17.  As mentioned earlier, the Judge refused leave for reasons set out in [32] - [40] of the Form CALL-1 ([2018] HKCFI 1675):

“32. The Applicant complained that he was not provided with legal assistance after the Director's decision coming out on 17 August 2016. He had been provided legal assistance by the Duty Lawyer Service till then.

33. 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. The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

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

35. In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application of judicial review. Apparently, the Applicant could seek language assistance when necessary. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents. His suspicion that the interpreter might have mistranslated/misinterpreted the basis of his claim in the non-refoulement claim form (“NCF”) was mere speculation. That cannot be a proper ground of complaint.

36. The Applicant quoted a certain part of paragraph 8 of the Director’s further decision dated 6 April 2017 “As your appeal/petition to the TCAB/NCPO is still pending determination, the arrangements mentioned in our letter dated 21 March 2017 shall apply, i.e. the TCAB/NCPO will determine your appeal/petition on all applicable grounds in one go. There is no need for you to file a separate and further petition to the NCPO.” He then accused the Director and the Board were not interested in the grounds of his appeal and simply wanted to determine his appeal in one go.

37. The Applicant was misconceived. The Director was only informing the Applicant that he need not file a separate appeal. The Applicant was not estopped from filing further grounds, if he had any. The Applicant had not shown he actually had further grounds of appeal that could have been filed to the Board.

38. The Applicant again complained about insufficient legal assistance and language assistance. These two issues have just been dealt with.

39. The Applicant said he had not received the Director’s letter dated 21 March 2017 inviting him to submit additional facts for the consideration of BOR2 risk. He also said he had not received the Director’s further decision dated 6 April 2017 although he had been living at the Boundary Street address stated on that decision notice. It was odd if the Applicant really had not received those correspondences. However, the Applicant failed to show the court how his claim with respect to BOR2 risk had been prejudiced. He could not establish that he had more proofs to produce or submissions to make for the Director’s consideration of BOR2 risk.

40. The Applicant last criticised the Director’s absence from the appeal hearing on 13 November 2017. Again, the Applicant failed to show how the Director’s absence would prejudice his appeal.”

No grounds of appeal to the Court of Appeal

18.  The applicant has not provided any proposed grounds of appeal from the 2018 Decision.  On the face of it, the 2018 Decision was one which, on the available materials, the Judge was entitled to make.  The applicant has not proffered any reasons why the judge was wrong.  He cannot simply rely on his own illiteracy.  Since he has been able to give instructions in Urdu for someone to prepare the English-language documents which he has filed in court, there is no reason why he could not ask that person to translate the 2018 Decision to him in Urdu.  It is then up to him to advance any grounds as to why he considers the judge was wrong in refusing leave to start judicial review.  He has not done so, and it is not good enough for him to say that he had not been advised that he needed grounds of appeal when it is he who is asserting that the judge was wrong.  Even if he did not know that he needed grounds of appeal when he appeared before the judge in September 2018, he should have known that by now.  He claims to “reserve the right to provide appeal grounds later on in the submissions” [para 10, affirmation 21 August 2019] and yet he has not provided submissions.  

19.  In our view, the applicant’s intended appeal has no prospect of success.

20.  Given that the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 21 August 2019.

21.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.