RE MUHAMMAD ABID

CAMP 43/2021

[2021] HKCA 836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 188 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 Bruno Chan (“the Judge”) dated 17 June 2020 refusing 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 2A(5)(a) 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 6 February 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 20 July 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 32.  He entered Hong Kong illegally and was arrested by the police on 16 October 2015.  He raised a non-refoulement claim on 18 October 2015.

6.  The applicant’s claim is based on his fear of being harmed or killed by his uncle and his sons and nephews because he had reported them for the murder of a man called Atlas and his family members arising out of a dispute over a plot of land.  The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarised by the Judge in the CALL-1 Form dated 17 June 2020[1] at [2] to [7]. We will not repeat them.     

7.  By his decision dated 20 July 2017, the Director rejected the applicant’s claim on the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] grounds.

8.  The applicant’s appeal to the Board was heard on 10 January 2018.  By its decision dated 6 February 2018, the Board dismissed the appeal.  Primarily, the Board found the applicant’s evidence unreliable in a number of significant aspects. Although the Board accepted that Atlas and his family members were killed, it was not satisfied that there was a real or substantial possibility that there was a connection between the applicant and the killings.  The Board also found that, even if it the applicant was connected to the killing, the evidence did not establish that the applicant would face danger if he were to return to Pakistan, especially if he were to return to live in Karachi and not his home village.  The Board concluded that the applicant failed to show he was entitled to non-refoulement protection on any of the appliable grounds.

9.  On 8 February 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Other than stating in the affirmation that the Board’s decision was unfair and unreasonable, the applicant had not provided any ground for seeking relief.  

10.  By the Form CALL-1 dated 17 June 2020, the Judge refused to the application for leave to apply for judicial review.  The Judge observed that the Board had made adverse findings on the credibility of the applicant’s claim, and had further found that that even if his claim was to be accepted, the risk of harm was a localised one. The Judge considered there was no error of law or procedural irregularity in the Board’s decision, and concluded that the applicant’s intended judicial review had no reasonable prospect of success.   

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period ended on 2 July 2020[6].

12.  By a summons filed on 10 August 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 21 October 2020, and by his decision handed down on 7 January 2021[7] refused the application. On 5 February 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

13.  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. 

14.  The applicant was late by about five weeks, which is not insignificant.  He explained to the Judge that he had missed the time for making the appeal, but did not provide any details or elaborations.  We agree with the Judge that the explanation was not satisfactory.  In the circumstances, the applicant has to show that his intended appeal has a real prospect of success.

15.  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].

16.  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.

17.  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 in the summons that the court gave a wrong judgment and the Judge had not shown any good cause of refusing him leave.  Bare assertions like these do not amount to viable grounds of appeal.

18.  Further, the applicant had provided no ground for seeking relief in his application for leave to apply judicial review.  Since the Judge did not find any legal errors, irrationality or procedural irregularities in the Board’s decision, the intended judicial review application had no prospect of success.  The Judge was right in refusing to give leave to apply for judicial review and dismissing the application.       

19.  For the above reasons, the applicant’s intended appeal against the Judge’s refusal to give leave to appeal for judicial review 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 5 February 2021.