RE SHEZAD ALI

CAMP 388/2022

[2022] HKCA 1662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 388 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1983 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  dated 28 December 2021[1] refusing to grant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 24 September 2020. In that decision, the Board rejected the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 8 February 2019 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant came from Pakistan and entered Hong Kong illegally in June 2009 and was arrested by the police in August 2009.  He raised a non-refoulement claim on the basis that if he returned to Pakistan, he would be harmed or killed by his enemies in the village who had tried to seize the land belonging to the applicant’s family.  The detailed factual contents of his claim were set out at [15] to [17] of the Board’s decision dated 24 September 2020.

3.  The applicant’s claim was initially assessed by the Director with reference to torture risk,[2] and rejected on 16 February 2011.  A petition to the Board was rejected on 21 March 2011.  The applicant submitted a second non-refoulement claim on 4 May 2014 which was assessed by the Director with reference to the other applicable risks, namely, BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5]  By notice of decision dated 8 February 2019 the Director rejected the applicant’s claim.

4.  The applicant appealed to the Board against the decision of the Director dated 8 February 2019.  The Board held a hearing on 13 January 2020 at which the applicant gave evidence and answered the Board’s questions through an interpreter.  In the end, the Board found that the applicant was not a credible witness, having regard to the “inconsistencies, vagaries and implausibilities” in his evidence as specified and explained in Board’s decision.  The applicant’s core claims were rejected by the Board, who considered them to have been fabricated.  The Board did not consider that the applicant faced a real risk of the proscribed harm if he was refouled to Pakistan.  Accordingly, the Board dismissed the appeal.

The Judge’s decisions in the court below

5.  On 5 October 2020, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  The applicant did not specify any ground for judicial review in the Form 86.  In his affirmation he merely stated that he was not satisfied with the decision of the Immigration Department and that his life was still in danger in his home country.

6.  On 7 December 2021, however, the applicant filed an affirmation requesting to withdraw his case because he wanted to go back to his home.  He asked that his case be closed as soon as possible.  Based on consideration of the documents alone, on 28 December 2021, the Judge issued his decision, dismissing the application for leave to apply for judicial review, having regard to the applicant’s stance as stated in his second affirmation.  

7.  On 17 July 2022, however, the applicant took out a summons stating that he was sorry he withdrew his application for leave to apply for judicial review, that his problem had not been solved and he did not want to return to his country after all, and that he wanted to appeal.  The accompanying affirmation did not add anything material.

8.  This was duly treated by the Judge as an application for extension of the 14-day period for appeal prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A).  In his written decision dated 25 August 2022, the Judge dismissed the application since he considered that there was no merit in the intended appeal.[6]

The renewed application before this Court

9.  By summons filed on 28 September 2022, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  Neither the summons nor the accompanying affirmation specified any grounds of appeal.

10.  In his written submissions the applicant reiterated the alleged danger for him in his home country, but did not explain at all why he withdrew the application for leave to apply for judicial review.

11.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

12.  The applicant’s application to the Judge for extension of time to appeal was made over six months after the deadline for appeal.  This is a substantial delay for which there is no proper and valid excuse.  Time should not be extended unless there is a real prospect of success in the appeal.

13.  The Judge dismissed the application for leave to apply for judicial review as the applicant himself filed an affirmation requesting to withdraw the application and asking the court to close his case.  In these circumstances, the applicant has wholly failed to show how the Judge has erred in his decision. 

14.  As there is no prospect of success in the intended appeal, time should not be extended.  The applicant’s summons is accordingly dismissed.