RE HAFEEZ MUHAMMAD

CAMP 283/2022, [2023] HKCA 607

On Appeal From [2022] HKCFI 778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 283 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2733 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I.  Factual background

1.  On 28 March 2022, Deputy High Court Judge K.W. Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) concerning his non‑refoulement protection claim.

2.  On 22 June 2022, the applicant’s application for extension of time to appeal against the said decision was dismissed by the Judge as there is no reasonable prospect of success in the intended appeal.

3.  On 1 August 2022, the applicant filed the present summons with the Court of Appeal seeking to extend time for appeal against the decision refusing leave to apply for judicial review.

4.  This summons is to be treated as a renewed application for leave to appeal out of time against the decision dated 2 August 2018: See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragraph 3 to 8.

5.  Under Order 59, rule 14A(1) of the RHC, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

6.  The applicant is a national of Pakistan.  He is 41 years old.  He entered Hong Kong illegally on 18 September 2015 and was arrested by the police on the same date.  He launched a non‑refoulement claim on 20 September 2015.  He claimed that if refouled, he would be harmed or killed by members of the Pakistan Muslim League (Nawaz) (‘PMLN’) because they wanted to occupy the applicant’s business.

7.  The applicant claims to be a supporter of Pakistan Tehreek-e-Insaaf (‘PTI’) since 2013.  In or around 2013, three members of the PMLN who were his opponents, sought to occupy the applicant’s farming and livestock business, they asked him to leave the PTI or otherwise they would kill him.  The applicant escaped to his friend’s place but heard that the members were still looking for him.  Out of fear, he eventually fled to Hong Kong for protection.

II.  The Director’s decisions

8.  By a Notice of Decision dated 23 January 2018, the Director rejected the applicant’s claim on, torture risk, BOR 2 risk, BOR 3 risk, and persecution risk.

9.  On 5 February 2018, the applicant appealed against the Director’s decisions to the Board.  An oral hearing was conducted on 13 September 2018.  The Board considered the account provided by the applicant to be highly unsatisfactory and was not satisfied that he had been truthful about his reasons for leaving Pakistan or his claimed fear of returning.  It was found that even if it was accepted that the applicant faced problems in his village, it would be reasonable and not unduly harsh for him to relocate to another area of Pakistan. 

10.  Overall, the Board was not satisfied that there was a real chance, a real risk or substantial or strong grounds for believing that the applicant would be subjected to harm amounting to torture, CIDTP/torture, a risk to his life or persecution upon his return to Pakistan.  Since his claim for non‑refoulement protection failed on all applicable grounds, the Board dismissed the appeal on 26 November 2018.

III.  The intended judicial review

11.  The applicant filed a Form 86 and an affirmation on 3 December 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  In his affirmation he said that the Immigration Department had disregarded his dangerous situation.

IV.  The Judge’s decision

12.  The Judge was of the view that the applicant has not given any valid ground to challenge the Board’s Decision.  The applicant’s complaint is only his opinion without any evidence in support.  The case of Re: Kartini [2019] HKCA 1022, 9 September 2019 at [13] was applied.  The Judge found no error of law or procedural unfairness in the Board’s decision, and that the findings of the Board were not in any respect open to challenge as Wednesbury unreasonable or irrational.  Given that he found no evidence to show that the applicant has any realistic prospect of success in his intended judicial review, leave was thus refused and the application was dismissed on 28 March 2022.

V.  Grounds of intended appeal

13.  The applicant did not provide any grounds in his affirmation for this application.

14.  His written submissions repeated of his fear that his enemy tried to kill him many times, and that the adjudicator had many wrongs in the process, but they were not specified.  He claimed that there were many errors since the beginning, but also failed to specify.

VI.  Analysis

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will take into account: 1) the length of delay; 2) the reasons for the delay; 3) the prospect of the intended appeal; and 4) the prejudice to the respondent if an extension of time were granted.

16.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The order was made on 22 June 2022.  The applicant took out a summons for leave to appeal out of time at the court below on 1 August 2022.  He was late by 26 days.

17.  The applicant claimed that he received the judgment late in his mailbox in his supporting affirmation filed with the court below.  He did not explain whether there was any mistake in his mailing address or why the Judgment was received late. In any event, the applicant’s explanation for his delay cannot be considered as justifiable as it is established that the litigant has the duty to give the Court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]). 

18.  Moreover, even if the Court is minded to accept any explanation in view of the delay in the present case, the Court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application.

19.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  

20.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the Judge in light of the grounds advanced by the applicant.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

21.  In the present application, the applicant has not put forward any ground to reverse the Judge’s decision.  The applicant failed to show that he has any reasonable prospect of success in his intended appeal.  Thus, the summons filed on 1 August 2022 is dismissed.