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CAMP 245/2022, [2023] HKCA 773
On Appeal From [2022] HKCFI 575
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 245 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 2343 OF 2018)
_________________________
| RE: |
AHMED KHAWAJA |
Applicant
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_________________________
| Before: |
Hon Yuen and Chow JJA in Court |
| Date of Written Submissions: |
27 July 2022 |
| Date of Judgment: |
19 June 2023 |
___________________
J U D G M E N T
___________________
Hon Yuen JA (giving the Judgment of the Court):
1. On 2 March 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim and dismissed his leave application. (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), 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.
2. Even though the General Adjournment Period expired on 11 April 2022, the applicant did not lodge an appeal. He filed a summons in the Court of First Instance on 3 May 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 10 June 2022.
3. On 13 July 2022, the applicant filed his summons in CAMP 245/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.
4. In compliance with the directions made by the Registrar of Civil Appeals on 13 July 2022, the applicant lodged his written submissions on 27 July 2022.
5. Under Order 59 r. 14A(1) RHC, 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.
Background
6. The applicant is a national of Pakistan. He entered Hong Kong illegally via Shenzhen and was arrested by the police on 4 September 2014. He lodged a non-refoulement claim on 6 September 2014 alleging that if refouled, he would be harmed or killed by the father and brother of Gul Panrah (“GP”) because he was one of the witnesses at the wedding of GP and his childhood friend Nasir, who (he heard) was murdered by GP’s brother one week after the wedding. The applicant said he was threatened and attacked by some unknown men on two occasions, but he had never met GP’s father or brother. The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2022] HKCFI 575).
7. By a Notice of Decision dated 9 May 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].
8. The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 17 September 2018. By its decision dated 24 September 2018, the Board dismissed the appeal. For the reasons set out at [38] to [54], the Board found that the applicant’s allegations that Nasir had been killed by GP’s father and brother, who also sent two groups of strangers to attack him, were hearsay and speculative. Moreover, as (according to the applicant) Nasir had already been killed, there was no reason why anyone would need to threaten the applicant. After considering all the evidence, the Board found that the applicant failed to establish that he would be subjected to torture or harm or ill-treatment on all applicable grounds if refouled. In any event, relevant country of origin information suggested that there is reasonable state protection, and internal relocation is a viable option. For the aforesaid reasons, his non-refoulement protection claim was rejected on all applicable grounds.
Application for leave to start judicial review
9. On 25 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.[5] He did not advance any grounds for his intended challenge in his summons and supporting affirmation save for saying that he was not satisfied with the Board’s decision.
The JR Decision
10. The applicant did not request an oral hearing and the Judge proceeded to dispose of the application on paper. After due consideration, the Judge refused leave for judicial review for reasons set out in [12] - [17] of the JR Decision:
“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 (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.”
15. He has submitted no valid ground to assist his application. His ground is only his comment without any evidence in support.
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 to show that the applicant has any realistic prospect of success in his intended judicial review.”
Application for extension of time to appeal the JR Decision
11. As mentioned earlier, the applicant failed to file a notice of appeal within time and filed a summons in the Court of First Instance on 3 May 2022 for an extension of time to appeal, which was dismissed by the Judge on 10 June 2022. Hence, the Summons to this court.
Discussion
12. In considering whether to extend time for appeal, 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 (although the lack of prejudice does not mean an extension will be granted).
13. As for (1), the applicant did not apply to file his Notice of Appeal out of time until 3 weeks after the end of the General Adjournment Period. His delay was substantial.
14. As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he did not receive the JR Decision. However, the court record showed that the JR Decision was sent to the applicant’s last reported address (which is the same as the one provided in his summons dated 3 May 2022) on the day it was handed down, and it was not returned as undeliverable mail. He did not provide any explanation why, notwithstanding the above, he did not receive the JR Decision. In the circumstances, we do not see any good reason for the applicant’s delay.
15. The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant did not raise any proper ground of appeal against the JR Decision. It is plainly right for the Judge to conclude that there is no realistic prospect of success in the intended appeal and to refuse leave.
16. In his written submissions to this court, he merely repeated the factual allegations of his claim and urged the Court of Appeal to grant his application which had been rejected by the Director, the Board and the Judge.
17. It is clear that the Board rejected the application on the facts.
18. We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny. We are of the view that the Judge’s observations are fully justified and he was entitled to refuse leave.
19. As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 13 July 2022.
(Maria Yuen)
Justice of Appeal |
(Anderson Chow)
Justice of Appeal |
The applicant, unrepresented, acting in person
[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] Although the applicant initially named the Director as the respondent in Form 86, he then stated in the Form that he sought to appeal against the Board’s decision and the same was mentioned in his supporting affirmation. The Judge subsequently ordered that Form 86 be amended to the effect that the Board is the proposed respondent, see the JR Decision at [3].
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