RE SHAHID MUHAMMAD

CAMP 499/2022, [2023] HKCA 1259

on appeal from [2021] HKCFI 2460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 499 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 947/2021)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ K W Lung (“the Judge”) dated 26 August 2021 refusing to grant leave to the applicant 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 20 October 2020 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 17 September 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong as a visitor on 15 September 2002, but he overstayed and was arrested by the police on 24 February 2004.  On 23 July 2007, he lodged a torture claim, which was subsequently rejected by the Director on 13 November 2013.  Thereafter, he lodged a non-refoulement claim under the Unified Screening Mechanism on 28 August 2018, which was assessed on all applicable grounds other than torture.

3.  The applicant’s claim was based on a fear of being harmed or killed by the Shia people, whom he believed to have kidnapped his father.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the persecution risk[2], the BOR2 risk[3] and the BOR 3 risk[4].

5.  The applicant appealed to the Board.  After a hearing on 23 July 2020 (at which he was absent), the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found that the applicant had failed to establish his claims or his fear of harm on the evidence.

The Judge’s decision

6.  The applicant filed a Form 86 on 5 July 2021 seeking to judicially review the Board’s Decision, without setting out any grounds.

7.  In his supporting affirmation, he stated that his life was “still in danger” in his home country.

8.  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 [12] to [18] of the CALL-1 Form:

“12.  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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

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

‘13 …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.’

15.  His grounds in support of this application do not assist his application.  The Board was quite justified to reject his evidence in light of the deficiencies in the value of his evidence without clarification and the strange nature of his case.  The Board has, in fact, considered the merit of his case, which it found to have no merit at all.

16.  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.

17.  There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The present application for extension of time to appeal

9.  The applicant’s address as stated in his Form 86 was at Castle Peak Bay Immigration Centre (“the Centre”).  A letter sent to the Centre on 26 August 2021, which enclosed a copy of the CALL-1 Form, was returned and marked “no such person”.

10.  Subsequently, the Immigration Department informed the court that the applicant’s updated address was Wing Kwong Street, Hung Hom (“the Hung Hom Address”).  A further letter enclosing the CALL-1 Form was sent to the Hung Hom Address on 3 September 2021, which was not returned undelivered.

11.  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 Judge’s decision dated 26 August 2021.

12.  From a subsequent letter from the applicant dated 17 June 2022, it transpired that he had again been remanded at the Centre as from an unknown date, and by the letter he requested for a copy of the CALL-1 Form, which was duly sent to him (albeit by that time the period he was permitted to lodge an appeal had long elapsed) at the Centre and was not returned undelivered.

13.  The applicant thereafter took out a summons in the Court of First Instance on 12 July 2022 seeking extension of time to appeal, in which his address was stated to be at the Centre.  In the summons he stated that he could not lodge the appeal on time because he did not “have money for this”.

14.  The applicant’s application to appeal out of time was dismissed by the Judge on 16 August 2022[5].

15.  By a summons filed on 28 November 2022, the applicant renewed his application for an extension of time to appeal before this court, wherein he stated (for the first time) that he did not “get the High Court letter on time”.

16.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions on or before 12 December 2022.  He is therefore deemed to have abandoned his right to rely on written submissions.

Discussion

17.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

18.  As noted above, the Judge’s decision was sent to the last known address of the applicant at the time (i.e. the Hung Hom Address) and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and that he has had knowledge of the Judge’s decision within the period which he was permitted to lodge the intended appeal.

19.  Further, here is no explanation on the part of the applicant as to the periods of his detention at the Centre.  In any event, it was incumbent upon the applicant to notify this court of any changes to his correspondence address (including that of the Centre), and he must bear the consequences of failing to do so.

20.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.

21.  Further, the delay of around 3 months by the applicant in renewing his extension of time application before this court is substantial, and his application is liable to be dismissed on this basis of unexplained serious delay.  However, we have nonetheless proceeded to consider the merits of the intended appeal.

22.  The applicant has not condescended to any 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. 

23.  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.

24.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 28 November 2022 is accordingly dismissed.