RE MUHAMMAD ASLAM

CAMP 443/2022, [2026] HKCA 1233

On appeal from [2022] HKCFI 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 443 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 942/2019)

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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 DHCJ K.W. Lung (“the Judge”) dated 9 June 2022[1] (“the JR Decision”, as contained in “the CALL-1 Form” dated the same) refusing leave to the applicant to apply for judicial review.

2.  The applicant, had by a Form 86 filed on 8 April 2019 (“the Form 86”), sought leave to apply for judicial review (“the JR Application”) against (i) the decision of the Torture Claims Appeal Board (“the Board”) given on 26 March 2019 (“Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) given on 14 November 2018 (“Director’s Decision”); and (ii) the Director’s Decision itself.  

3.  In the supporting affirmation to the Form 86, the applicant requested that an oral hearing be fixed for the determination of the JR Application.

Procedural background and the applicant’s right to an oral hearing

4.  O.53 r.3 of the Rules of the High Court (Cap.4A) (“the Rules”) sets out, inter alia, the applicable procedure for the determination of the JR Application. Rule 3(3) provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.” (emphasis added)

5.  Despite the applicant’s request for an oral hearing, according to the court’s records and contrary to the Judge’s mistaken belief (at [2] of the CALL-1 Form), the JR Application had not been listed or fixed for hearing.

6.  The Judge, purportedly invoking his discretionary and case management power under O.53 r.3(3) of the Rules, proceeded to determine the JR Application on the papers (see [2] of the CALL-1 Form).

7.  In this connection, this court has previously held that by reason of the clear wording of O.53 r.3(3) and the applicant’s express request for an oral hearing, it was not open for the Judge, nor could he invoke discretionary powers of the court, to determine the JR Application on the papers.  It is thereforearguable that the Judge had erred in law and fact in determining the JR Application without an oral hearing.  See Re Hossain Anowar [2023] HKCA 1361 at [10]-[11]; Re Mondal Sumitra Rani [2023] HKCA 1063 at [19]-[21]; Re Pervin Jahanara [2023] HKCA 1064 at [20].

8.  It therefore follows that in exercising his discretion to refuse leave to the applicant to apply for judicial review without an oral hearing, the Judge had arguably reached the JR Decision on an erroneous basis in law.

9.  In the premises, notwithstanding that applications of this kind (such as the present renewed application for extension of time to appeal) are usually determined by this court on the papers, by reason of the aforesaid special circumstances of this case, this court on its own motion directed that a hearing be fixed on 16 January 2024 in order that the applicant be afforded an opportunity to make oral submissions to this court in support of the present application, as well as to make submissions which he would have made to the Judge in the court below had a hearing for the determination of the JR Application been fixed pursuant to his request.

10.  By reason of the problematic basis on which the JR Decision was reached by the Judge, this court will, in addition to its determination of the present application for extension of time to appeal, exercise afresh the court’s discretion with respect to the JR Application by its own examination and scrutiny of the Board’s Decision to determine whether leave to apply for judicial review should have been granted to the applicant by the Judge.

Background to the applicant’s non-refoulement claim

11.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 22 August 2015, and he surrendered to the Immigration Department on 22 October 2015.  On 30 December 2015, the applicant lodged a non-refoulement claim (“NRF Claim”).

12.  The NRF Claim was based on a fear of being harmed or killed by members of the Sunni sect in Pakistan.  The details of the NRF Claim have been summarised by the Judge at [4] to [5] of the CALL-1 Form.

13.  By the Director’s Decision, the Director decided against the NRF Claim based on all applicable grounds, namely the torture risk[2], the persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].

14.  The applicant appealed against the Director’s Decision to the Board.  The Board conducted a rehearing of the NRF Claim on 22 February 2019, where the applicant appeared in person and gave evidence and answered the Board’s questions.

15.  The applicant claimed that due to his conversion from Sunni to Shia Islam (at [31] of the Board’s Decision), he had been assaulted by people from his village (at [34]).  He later allegedly escaped to the house of his father-in-law (at [37]), but he did not report the incidents to the Pakistani police as he believed they were corrupt (at [40]).  In this regard, the Board found, inter alia:

(1)     The applicant’s evidence as to why he had converted from Sunni to Shia Islam was vague and unconvincing (at [46]);

(2)     He was unable to convincingly nor cogently explain how, for instance, the Sunni and Shia faiths differed in their modes of prayer (at [46]-[47]);

(3)     His evidence as to whether it was only himself, or whether it was himself and other family members, who had converted to Shia Islam, was contradictory (at [49]);

(4)     The applicant is not a credible witness and the applicant’s fundamental basis for his claim of fear of harm, namely his conversion from Sunni to Shia Islam, was rejected on the facts and evidence (at [50]).

16.  By the Board’s Decision, the Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection.

The Judge’s decision

17.  By the Form 86, the applicant sought to judicially review the Board’s and the Director’s Decisions, without setting out any grounds.

18.  In his supporting affirmation, the applicant made several complaints against the Director’s Decision (which as the Judge rightly observed at [1] of the CALL-1 Form, was not amenable to judicial review), such as the alleged failure on the part of the Director to take into account relevant considerations in reaching his Decision.  In respect of the Board’s Decision, the applicant merely stated in general terms that the Board had “failed to make sufficient enquiring (sic) before finalising the determination” without elaboration.  Notably, the applicant also requested that an oral hearing be fixed for the leave application.

19.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL‑1 Form:

“13.      The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.     The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.     In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

16.     The applicant has not been able to raise valid ground to challenge the Board’s Decision. The ground in paragraph 12 above is only his bare allegation without any substance or evidence to support it.

17.     The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.     The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

CONCLUSION

19.     I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

20.  The applicant’s last known address at the time of the JR Decision was at Mody Road, Tsim Sha Tsui (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 9 June 2022, which was not returned undelivered.

21.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the JR Decision.

22.  The applicant thereafter took out a summons in the Court of First Instance on 4 July 2022 seeking extension of time to appeal, in which his address was also stated to be the Address.  He claimed that he did not know of the 14-day period within which he was obliged to lodge his intended appeal.  In his supporting affirmation filed on the same date, he contended that failure on the part of the Judge to fix an oral hearing for his leave application had deprived him of the opportunity to present his case to the Court “properly”.  However, he did not elaborate on the matters which he would have submitted to the Judge, had an oral hearing been fixed for his application.

23.  By the Judge’s decision dated 28 July 2022[6], the applicant’s application for extension of time to appeal was dismissed.

24.  By a summons filed on 26 October 2022, the applicant renewed his application before this Court for an extension of time to appeal.  In the summon and in his supporting affirmation filed on the same date, the applicant merely contended that his life would be in danger should he be refouled.

25.  In the written submissions lodged by the applicant on 3 November 2022, he referred to the well-established principles in, inter alia, ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

26.  We acknowledge that the applicant had in his Form 86, under O.53 r.3(3) of the Rules, requested for an oral hearing before the Judge.  As we stated above, it was not open to the Judge to determine the JR Application on the papers in these circumstances.  In this case, we note that the Judge in his decision had nonetheless proceeded to determine the application on the papers (see [2] of the CALL-1 Form).

27.  This Court therefore directed that an oral hearing be fixed for the purpose of enabling the applicant to make submissions in support of the present application, as well as submissions he would have made to the Judge in support of the JR Application, had an oral hearing been fixed for that purpose.  The Board and the Director were excused from attendance at the hearing.

28.  We heard the application on 16 January 2024.  The applicant was absent at the hearing, and we have therefore proceeded to dispose of the present application based on the materials that have been lodged with the court by the applicant.

Discussion

29.  As stated above, it was arguable that in the present circumstances the Judge had erred in law and fact in determining the JR Application without an oral hearing.  We have therefore considered and decided to exercise the Judge’s discretion in respect of the JR Application afresh.  

30.  Notwithstanding the lack of an oral hearing before the Judge, the applicant was in any event afforded an opportunity to make submissions to this Court at the hearing of the present application on 16 January 2024.  However, he did not avail himself of that opportunity, as he was absent at the hearing.

31.  For the following reasons, we are of the view that the present application for extension of time to appeal falls to be dismissed by reason that the intended appeal is wholly lacking in merits.

32.  At the outset, we note that there was no cogent explanation provided by the applicant as to why he was late in lodging his intended appeal.  As noted above, the CALL-1 Form was sent to the Address by post, which was not returned undelivered.  The inference to be drawn is that the applicant has had knowledge of the JR Decision within the period in which he was permitted to lodge an appeal.  In the circumstances, there is clearly no reasonable explanation for the delay.

33.  As to the substantive merits of the intended appeal, the applicant has not condescended to any or any sufficient particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

34.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so. 

35.  Save the apparent procedural error by the Judge (which we have dealt with above), the applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.  We have also subjected the Board’s Decision to anxious scrutiny and have found no reasonable basis for intervention.

36.  There was also no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his application by the Board or the Judge.

37.  In exercising afresh the court’s discretion, we are of the firm view that the applicant had failed to satisfy the threshold required for leave to apply for judicial review.  Due to its lack of merits, we would have refused to grant leave for the applicant to apply for judicial review.  The JR Application was rightly dismissed.

38.  In the premises, there is clearly no prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 26 October 2022 is accordingly dismissed.