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CAMP 214/2021
[2021] HKCA 1505
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 214 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO. 1286 OF 2018)
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| BETWEEN |
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EJAZ ADNAN |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITON OFFICE |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party |
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Before: Hon Au and Chow JJA in Court
Date of Written Submission: 22 July 2021
Date of Judgment: 26 October 2021
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JUDGMENT
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Hon Chow JA (giving the Judgment of the Court):
1. By a summons dated 10 June 2021, the Applicant applied to this Court for an extension of time to appeal the order made by Deputy High Court Judge K.W. Lung (“the Judge”) on 16 March 2021 refusing to grant leave to apply for judicial review.
2. Having considered the Applicant’s summons and affirmation dated 10 June 2021 and the written submissions dated 22 July 2021, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.
BACKGROUND
3. The Applicant is a national of Pakistan. He came to Hong Kong illegally in May 2007 and was arrested on 22 December 2007. He lodged a non-refoulement claim on 6 January 2008 on the basis that if refouled, he would be harmed or killed by an influential family because they wanted information from him about his friend, whom the family suspected to have killed one of its members. Details of the Applicant’s claim have been summarised by the Judge at §§9-10 of the CALL-1 Form ([2021] HKCFI 625).
4. By a Notice of Decision dated 24 October 2014, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture,[1] BOR 3 risk[2], and persecution risk[3] (“the Director’s Decision”).
5. The Applicant appealed the Director’s Decision to the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”). On 29 June 2015, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s First Decision”), on the grounds that (i) the Applicant was not a truthful witness, (ii) State protection was available to him if he returned to Pakistan, and (iii) internal relocation was an option open to him.
6. By a Notice of Further Decision dated 17 January 2017, the Director rejected the Applicant’s non-refoulement claim based on BOR 2 risk[4] (“the Director’s Further Decision”).
7. The Applicant filed an appeal dated 9 March 2017 against the Director’s Further Decision to the Board which was out of time by one month and seven days. On 20 June 2018, the Board refused to grant the Applicant an extension to file the appeal and affirmed the Director’s Further Decision (“the Board’s Second Decision”).
8. On 5 July 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Second Decision.
9. On 16 March 2021, the Judge, having considered the Board’s First and Second Decisions, refused to grant leave to the Applicant to apply for judicial review. The Judge’s reasons for refusing to grant leave can be seen from paragraph 26 of the CALL-1 Form:
“The Court does not find any error of law or procedural unfairness in the Board’s First Decision. The Board had considered the merits of his case before it made its Second Decision not to extend time to him to file his 2nd Notice of appeal. Since the Board did not accept the facts of the applicant’s case, the applicant has no factual basis in support of his application on all the risks, including the BOR 2 risk. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”
THE JUDGE’S EXTENSION DECISION
10. Under Order 53, Rule 3(4) of the RHC, the Applicant may appeal against the judge’s order to the Court of Appeal within 14 days after the order. No notice of appeal was filed by the Applicant within the 14-day period. On 7 April 2021, the Applicant filed a summons for extension of time to appeal.
11. The Applicant stated that he did not receive the Court’s Form CALL-1 (see [2021] HKCFI 1222 at §4). The Judge observed that the decision was sent to the Applicant’s last known address and was deemed to have been served on him in the ordinary course of post, as it was not returned unserved (§6).
12. Citing Re Adumekwe Rowland Ejike [2019] HKCA 702, §19, the Judge held that the prospect of success of the intended appeal is important and the court will not grant an extension of time for a hopeless appeal to be pursued (§7).
13. The Judge concluded that there was no evidence showing any prospect of success in the Applicant’s intended application for judicial review (§13).
14. Accordingly, on 12 May 2021, the Judge refused to extend time for the Applicant’s Appeal and dismissed his application.
THIS APPLICATION
15. In his summons and supporting affirmation dated 10 June 2021, the Applicant stated that he needed to appeal as he would be sent back home immediately if he did not do so, and his problem in his home country had not yet been solved.
16. In his written submissions dated 22 July 2021, which was filed one day late, the Applicant merely repeated his claimed fear and asked that his application be considered.
DISCUSSION
17. In deciding whether to grant an extension of time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time were granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success: see Tang Chai On v Tang Sing Ki (supra), at §9.
18. The prospect of success of the intended appeal is important: the court will not grant an extension of time for a hopeless appeal to be pursued, see Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
19. The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.
20. The Applicant has not shown any errors in the Judge’s decision refusing to grant leave to apply for judicial review, or any viable grounds of appeal in his summons, affirmation, or written submissions. Repeated assertions of the Applicant’s fear if refouled do not constitute a valid ground of appeal.
21. Having carefully considered the documents before us, we consider that there is no prospect of success in the Applicant’s intended appeal.
DISPOSITION
22. The application for extension of time to appeal is refused, and the Applicant’s summons of 10 June 2021 is dismissed.
| (Thomas Au) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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