RE ABDUL WAHAB

CAMP 217/2023, [2025] HKCA 409

On Appeal From [2023] HKCFI 715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 217 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1126 OF 2022)

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J U D G M E N T

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

1.  On 8 June 2023, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 28 March 2023 ([2023] HKCFI 715)  (“the Leave Decision”)  refusing to grant him extension of time and dismissing his application for leave to apply for judicial review.  On 6 June 2023, the Judge refused to grant extension of time to appeal against the Leave Decision to the applicant ([2023] HKCFI 1472)  (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 26 November 2019 (“the Board’s 2^nd Decision”)[1], in which the Board allowed the applicant to withdraw his appeal against the decision of the Director of Immigration (“the Director”)  dated 21 April 2017 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Pakistan.  He entered Hong Kong as a visitor on 14 November 2000 and was permitted to remain until 21 November 2000.  However, he did not depart and had overstayed since 22 November 2000.  On 13 January 2008, he was arrested by the police for overstaying.  On 26 January 2008, he raised a torture claim, which was later taken as a non-refoulement claim by the Director and assessed on all applicable grounds.  His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle and cousins.  Details of the applicant’s claim have been summarised by the Judge at [4] - [12] of the Leave Decision.

5.  By a Notice of Decision dated 26 March 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds including the risk of torture[2], BOR3 risk[3], and persecution risk[4].  By a Notice of Further Decision dated 21 April 2017 (“the Director’s 2^nd Decision”), the Director further rejected the applicant’s non-refoulement claim on BOR2 risk[5].

6.  On 9 April 2015, the applicant appealed against the Director’s 1^st Decision to the Board.  On 24 March 2016, the Board held an oral hearing.  On 23 February 2017, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s 1^st Decision”).  The Board’s reasons for its decision were summarised by the Judge at [17] - [19] of the Leave Decision:

“17.  The Board recapped the applicant’s case.  It considered the alleged injuries sustained in the assault incidents and found that they were not serious injuries [29]-[34].  It also found that the applicant’s repeated returns to his home village, despite that he could avoid the risk of ill-treatments by residing outside his home place, were inconsistent with someone who feared a risk of harm [35]-[40].  The Board further considered the country of origin information and found that state protection and internal relocation were both available [41]-[52].

18.  In assessing the individual grounds, the Board found that his uncle and cousins were not acting in the official capacity nor under the consent of the Pakistan government [58]; and that it was only a personal and business dispute over the operation of the restaurant [66].

19.  For the aforesaid reasons, in the decision dated 23 February 2017, the Board rejected the applicant’s claim on Torture risk, Persecution risk and BOR 3 risk and dismissed his appeal (the ‘Board’s First  Decision’).”

7.  On 28 June 2017, the applicant filed his notice of appeal against the Director’s 2^nd Decision to the Board. However, on 5 November 2019, the applicant wrote to the Board that he wished to go back to his home country and requested to withdraw his non-refoulement claim.

8.  By a letter dated 7 November 2019, the Board wrote to the applicant acknowledging receipt of his letter and advised him to seek independent legal advice on the consequences of his withdrawal.  The Board also required him to submit his reply on or before 14 November 2019, failing which the Board would consider approving his application for withdrawal.

9.  By the Board’s 2^nd Decision (the Judge referred to this as the Board’s Third Decision), the Board informed the applicant that since the Board did not receive his reply, it was satisfied that after considering all the available information, his application to withdraw the appeal was freely sought and that he understood the consequences of the withdrawal.  The Board was also satisfied that there was a good reason for his withdrawal as he considered it safe to return to Pakistan.  Accordingly, the Board granted the applicant’s request for withdrawal and that the said appeal was disposed of and finally determined by the Board.

10.  On 21 October 2022, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s 2^nd Decision.  By that time, he was late for over 2.5 years in making his application.  No ground was given for his intended judicial review.

THE JUDGE’S DECISION

11.  As the applicant did not request for any oral hearing, the Judge considered and determined his application on paper.

12.  On 28 March 2023, the Judge refused to grant the applicant extension of time and dismissed his application for leave to apply for judicial review.  His reasons were stated at [25] - [32] of the Leave Decision:

“25. As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 26 February 2020. The delay is about 2 years and 8 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

26. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Third Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

27. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

28. It seems clear that the applicant had, on his own volition after having been advised to take legal advice, decided to withdraw his appeal. The Board confirmed in the Board’s Third Decision that his appeal had been disposed of and finally determined by the Board and no further action would be taken by the Board in respect of his appeal. The question is whether the Board’s decision is correct.

29. The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, 13 June 2019 held:

‘41. … …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … … s 37V(2)(b)  of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2)  if he can fulfil the requirements in sub-ss (a)  and (b)  thereunder.’

30. The applicant’s withdrawal was a valid withdrawal of his appeal. The Board was correct to have made the Board’s Third Decision.

31. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

32.  Therefore, I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Third Decision. Accordingly, I dismiss his application.”

13.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

14.  On 12 May 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was one month late with his intended appeal.  In his affirmation, he contended that he failed to receive the Leave Decision.

15.  On 6 June 2023, the Judge refused the applicant’s application, holding that the Leave Decision was sent to the applicant’s last known address without return from the Post Office and that the applicant had not been able to show that there was any realistic prospect of success in his intended appeal on the facts of his case.

THIS APPLICATION

16.  By a summons and a supporting affirmation filed on 8 June 2023 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, the applicant merely stated:

“THE HIGH COURT DISMISSED MY LEAVE TO APPEAL FOR JUDICIAL REVIEW. THE HIGH COURT DID NOT GIVE ME JUSTICE, THE HIGH COURT DID NOT GIVE ME CHANCE TO APPEAL.” (sic)

17.  In his supporting affirmation, the applicant stated:

“FOR EXTENTION OF TIME TO APPEAL. THE HIGH COURT DISMISSED MY LEAVE APPLICATION AND DIN NOT GIVE ME TIME TO APPEAL.” (sic)

18.  Pursuant to the directions of the Registrar of Civil Appeals dated 8 June 2023, the applicant lodged his written submissions on 23 June 2023.  In those submissions, he reiterated the factual basis and procedural history of his non-refoulement claim and alleged that he did not receive the Leave Decision and his application for extension of time was refused.

DISCUSSION

19.  In deciding whether to extend time to appeal, the 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 is granted.

20.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

21.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

22.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

23.  The applicant’s delay of one month was significant.  Although he alleged that he did not receive the Leave Decision, as rightly noted by the Judge, according to the court record, the Leave Decision was sent to the applicant’s last known address without return from the Post Office at the material time.  We do not accept the applicant’s bare contention.

24.  In any event, in our view, the present application is devoid of merit.  His allegations are all vague, bare and general in nature.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  He fails to specifically identify any error in the Leave Decision.  Clearly, his assertions are not proper grounds of appeal.  As rightly noted by the Judge, the Board accepted the applicant’s withdrawal on the basis of his own request after considering all the relevant circumstances.  The applicant fails to point out any error in the Board’s Decision and the Leave Decision on public law grounds.  His intended appeal is a nonstarter.

25.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant him any extension of time to appeal against the Leave Decision.

DISPOSITION

26.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 8 June 2023 is dismissed.