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CAMP 188/2022, [2023] HKCA 1004
On Appeal From [2021] HKCFI 3815
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 188 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 1823 OF 2019)
________________________
| RE: |
MOHAMMAD YASIN |
Applicant |
________________________
| Before: |
Hon Yuen and Barma JJA in Court |
| Date of Judgment: |
7 September 2023 |
________________________
J U D G M E N T
________________________
Hon Yuen JA (giving the Judgment of the Court):
1. On 23 December 2021, 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. The applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance (“CFI”) on 14 April 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 23 May 2022.
3. On 10 June 2022, the applicant filed a summons in CAMP 188/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.
4. Pursuant to the directions made by the Registrar of Civil Appeals on 10 June 2022, the applicant should lodge his written submissions in support of the Summons on or before 24 June 2022. However, he failed to do so. The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.
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 on 20 June 2008. He was arrested by police on 9 May 2009 and was then referred to the Immigration Department for investigation. On 12 May 2009, he raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was subsequently taken to be a non-refoulement claim. He alleged that if refouled, he would be harmed or even killed by his paternal uncle (who died before June 2018) and two cousins over a family land dispute.
7. By a Notice of Decision dated 26 June 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 8 January 2019. By its decision dated 22 March 2019, the Board dismissed the appeal. For reasons set out at [85] to [108], the Board found that the applicant was not a witness of truth. At [86] to [94], the Board set out his new evidence which it described as a “dramatic transformation” [95]. Having carefully considered the applicant’s evidence, the Board formed the view that he had fabricated his claims and it was not believed that he would face any real risk of harm upon his return to his home country. For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.
Application for leave to start judicial review
9. On 2 July 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions. In his supporting affirmation, he complained that the Director’s and the Board’s decisions were unreasonable and the Director had failed to consider all the matters raised by him.
10. However, by an affirmation filed on 16 November 2021, the applicant applied to the court to cancel his application. In the affirmation, he said that he had settled his problem and wanted to go back home.
The JR Decision
11. In the JR Decision, the Judge considered the applicant’s application for cancellation. He noted the case of AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, which stated that the court may exercise its discretion not to grant a remedy in judicial review where it may have become otiose or pointless because the relevant detriment to the applicant has been removed. Accordingly, on 23 December 2021, the Judge dismissed the application made on 2 July 2019.[5]
Application for extension of time to appeal the JR Decision
12. However, on 14 April 2022, the applicant filed a summons in the CFI to appeal the JR Decision out of time. In his affirmation in support, he said that he did not receive the JR Decision. As the JR Decision dismissing the applicant’s application for leave to apply for judicial review was made pursuant to his application made to the court on 16 November 2021 requesting the court to cancel his application, the Judge found no realistic prospect of success in his intended appeal and thus refused to extend time for the applicant’s appeal and dismissed his application.
13. On 10 June 2022, the applicant took out the Summons to this Court applying for an extension of time to appeal the JR Decision.
Discussion
14. 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).
15. As for (1), even taking into account the General Adjournment Period between 7 March and 11 April 2022, the applicant was late by more than 2 months between the deadline for filing his appeal against the JR Decision and the summons filed in the CFI. His delay was not short.
16. As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he did not receive the JR Decision from the court The court file showed that the JR Decision was sent to the applicant at his last reported address (which is the same as the one provided in his summons dated 14 April 2022) and it was not returned as undeliverable mail. In the circumstances, we do not see any good reason for his delay.
17. The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The application for leave to apply for judicial review was dismissed upon the applicant’s own application for cancellation. No reasons have been advanced as to why he has now changed his mind.
18. In the Summons and supporting affirmation filed with this Court, the applicant did not advance any proper or valid proposed grounds of appeal, or any particulars of any error in the JR Decision. He merely said that his problem in his home country has not been fully resolved and he wants to stay in Hong Kong until his problems are all solved.
19. In our judgment, the applicant’s case is totally without merit and we are of the view that the Judge’s decision to dismiss the applicant’s application for leave upon his own application for cancellation was fully justified. No basis to challenge it has been shown.
20. 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 10 June 2022.
| (Maria Yuen) |
(Aarif Barma) |
| Justice of Appeal |
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] The JR Decision, at [3] – [5].
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