RE ANEES UR REHMAN

CAMP 83/2024, [2026] HKCA 705

On appeal from [2023] HKCFI 2981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 83 OF 2024

(ON AN INTENDED APPEAL FROM HCAL 1192/2019)

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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 KW Lung (“the Judge”)  dated 30 November 2023[1] (“the Leave Decision”)  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 25 April 2019 (“the Board’s Decision”)  dismissing the appeal against the decision of the Director of Immigration dated 26 June 2018 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out by the Judge in the Leave Decision at [5]-[6] and [9]-[12], which will not be repeated.  

3.  The applicant was absent at the hearing of the leave application.  After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [15]-[20] of the Leave Decision.  

4.  By a decision dated 26 March 2024[2] (“the EoT Decision”), the Judge refused to extend time for the applicant to appeal against the Leave Decision.

The present application for extension of time to appeal

5.  According to the court’s record, a copy of the Leave Decision and a sealed copy of the Judge’s order was sent by post to the applicant at his last known address on 30 November 2023, which was returned undelivered and marked “no such person”. 

6.  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 from the date of the Leave Decision.

7.  Subsequently, the applicant made an application in the court below for an extension of time to appeal against the Leave Decision, which was dismissed by the Judge for the reasons stated in the EoT Decision.

8.  By a Summons filed on 10 May 2024, the applicant renewed his application for an extension of time to appeal before this court.

9.  In the Summons and his supporting affirmation, the applicant contended that he did not receive a copy of the Leave Decision and therefore was unable to lodge his intended appeal in time.  He further stated that he disagreed with the Leave Decision.  

10.  In his written submissions lodged on 3 June 2024, the applicant repeated the background to his claim and the bases of his alleged fear of harm should he be refouled. The applicant again claimed that he did not receive a copy of the Leave Decision from the court.

11.  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.

Discussion

12.  Notwithstanding that the letter enclosing a copy of the Leave Decision, which was sent to the last known address of the applicant, was returned undelivered, it was incumbent upon the applicant to notify the court of a change of address, if any, as soon as possible.  The consequences of failure to do so must lie with him.  

13.  Even if we were to accept that the applicant did not receive a copy of the Leave Decision in time, he has failed to explained how and when he had come to learn of the contents of the Leave Decision. 

14.  Further, we note that the Judge, in reaching the EoT Decision, has focused on and duly considered the merits of the intended appeal and concluded that there was no realistic prospect of success, and therefore refused to extend time for the applicant to appeal.

15.  As for the present renewed application, there is a delay of around 1 month, which is not insignificant.  However, we will, as did the Judge, nonetheless proceed to consider the merits of the intended appeal.

16.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant were bare assertions unsupported by particulars or evidence.  In any event, general assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

18.  In the present case, the Board found the applicant’s primary claims, on which his alleged fear of harm was based, were unsubstantiated on the evidence.  In any event, the Board found that there was adequate state protection and suitable options of internal relocation available to the applicant, which would reduce or minimise the risks of harm, if any.  These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [15]-[20].  We see no basis to interfere.  

19.  Accordingly, the applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

20.  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 10 May 2024 is accordingly dismissed.