RE MUHAMMAD FIAZ

CAMP 16/2021

[2021] HKCA 881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 16 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1967 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 20 January 2020 refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant had filed an affirmation in support of his application.  Despite the directions given by the Registrar of Civil Appeals, he has not lodged a written submission.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 25 April 2017 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 16 January 2017 rejecting his non-refoulement claim on the BOR 2 risk ground[1].

5.  The applicant is a national of Pakistan aged 47.  He entered Hong Kong on 25 July 2006 and was given permission to remain as a visitor.  He overstayed and surrendered himself to the police on 27 August 2011.  He raised a non-refoulement claim on 3 September 2011. 

6.  The applicant’s claim is based on his fear of (1) being harmed or killed by the people of the Pakistan People’s Party (“PPP”) because he is a supporter of the rival Pakistan Muslim League Nawaz (“PML(N)”) party, and (2) being arrested by the police over a fight that happened in August 2001.  The details of the applicant’s claim were set out in the decision of the Director given on 16 September 2014.  We will not repeat them.     

7.  By two decisions dated 16 September 2014 and 16 January 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds.  The further decision covered the BOR 2 risk ground.

8.  On 8 June 2016, the applicant filed a notice of appeal with the Board to appeal the Director’s first decision.  The notice of appeal was late by 1 year and 8 months.  By a decision dated 23 September 2016, the Board refused to accept the late filing of appeal. 

9.  On 27 January 2017, the applicant filed an appeal to the Board against the Director’s further decision dated 16 January 2017.  By its decision dated 25 April 2017, the Board decided it was not necessary to hold a hearing and dismissed the appeal on the papers.  Primarily, the Board found the BOR 2 risk ground has no relevance to the applicant’s claim, and there was no evidence to show that the applicant would be at risk of harm that falls within the BOR 2 risk ground. 

10.  Under Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason to extend the time for bringing the application. 

11.  On 18 September 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s further decision dated 25 April 2017.  By then, the three months’ period for applying for judicial review had lapsed for more than 13 months.

12.  At the hearing of the application, the applicant explained the delay on the ground that he had changed his address and he was busy taking care of two young children as his wife was pregnant.  In both the Form 86 and supporting affirmation, the applicant did not set out any ground for seeking relief.  The applicant only asked to be allowed to stay in Hong Kong as he would face harm at his home country.  

13.  By the Form CALL-1 dated 20 January 2020[5], the Judge refused to extend the time and dismissed the application for leave to apply for judicial review.  Principally, the Judge was not satisfied with the reasons for the delay, and further considered that the intended judicial review had no reasonable prospect of success as it was not shown the Board was in error in coming to its further decision.

14.  Under Order 53 rule 3(4) of the Rules of the High Court, the applicant may appeal the Judge’s refusal of his application to the Court of Appeal within 14 days after the decision was made.  On 1 June 2020, the applicant filed a summons which was taken as an application for extension of time to appeal the Judge’s decision.  Deputy High Court Judge CP Pang heard the application on 18 November 2020, and by his decision handed down on 30 December 2020[6] refused the application.  

15.  On 12 January 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  

16.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

17.  The applicant explained in the summons and affirmation that he did not receive the Court’s decision. We note from the Court file that the Judge’s decision was mailed to the applicant’s address stated in the Form 86 and the supporting affirmation, but it was returned undelivered.  The address is different from that given by the applicant in the present summons and supporting affirmation.  It would appear that the applicant had moved, but he had not informed the court of the change in his address.  This being the case, the applicant’s reason for delay is unsatisfactory because it is his duty to inform the court of his new address.  In the circumstances, the applicant has to show that his intended appeal has a real prospect of success.     

18.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20.  In the present application, the applicant did not set out any proposed ground of appeal in his summons and his supporting affirmation.  He only stated that the Board had underestimated the possible danger and harm he would face on his return to Pakistan.  He has not, however, pointed to any error in the Judge’s decision or reasons. 

21.  Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  The Board had considered the applicant’s claim against the legal requirements of BOR2 risk ground and concluded that the ground has no application.  The applicant has not demonstrated in what way the Board erred in its conclusion.  The applicant’s intended judicial review application had no prospect of success, and the Judge was right in refusing to extend time and dismiss the application.           

22.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to extend time has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 12 January 2021.