RE IRFAN MUHAMMAD

CAMP 207/2023, [2026] HKCA 1356

On appeal from [2023] HKCFI 375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 207 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 778 OF 2019)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Chu VP (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 Lung (“the Judge”) dated 15 February 2023[1] refusing his application for leave to apply for judicial review.

2.  The applicant’s intended judicial review is against the decision of the Torture Claim Appeals Board (“the Board”) dated 14 March 2019 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 25 May 2018, which rejected his non-refoulement claim having regard to the BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds. The Director’s decision did not consider the torture risk ground[5] because the applicant’s previous torture claim was rejected on 21 June 2013.

3.  Despite direction of the Registrar of Civil Appeals, he has not lodged any written submission to support his application.

4.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

5.  The applicant is a national of Pakistan born in 1988. He entered Hong Kong illegally and was arrested by the police on 15 April 2009. His claim is based on fear of being harmed or killed by his two uncles due to a land dispute between his father and the uncle. According to the applicant, his uncles were active members of the Pakistan Muslim League (Quaid) (“PML(Q)”) whereas he and his family supported the Pakistan Muslim League (Narwaz) (“PML(N)”). He claimed that after his father’s death in 2006, his uncles killed his brother. He reported the killing to the police but was told they could not help him. When he went to look for his uncles, he shot and killed a man from the PML(Q). With the assistance of members of PML(N), he went into hiding and eventually went to Mainland China and later sneaked into Hong Kong. The details of the applicant’s claim and his evidence before the Board were set out at [21] to [24] of the Board’s decision.

6.  The Board heard the applicant’s appeal against the Director’s rejection of his claim on 16 January 2019. For the reasons set out in [43] to 56] in its decision, the Board dismissed the appeal. In gist, the Board found significant inconsistencies in the applicant’s accounts made to the Director and to the Board, and the applicant’s explanations were inadequate and could not be reconciled. The Board found the applicant had fabricated and concocted his evidence to advance a claim for non-refoulement protection, and the applicant would be at no risk of harm from his uncles should he return to Pakistan.

7.  On 20 March 2019, 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, he did not provide any ground for seeking relief. 

8.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 15 February 2023, the Judge refused to give leave for the applicant to apply for judicial review.  In summary, the Judge held that the applicant failed to show his intended judicial review had any realistic prospect of success as he had not put forward any valid reason to challenge the Board’s decision.

9.  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 decision within 14 days after it was made. The 14-day period for the applicant to appeal expired on 2 March 2023.

10.  By a summons filed on 27 April 2023, the applicant applied for an extension of time to appeal the Judge’s decision. In his affirmation, the applicant explained that he did not receive the Judge’s decision.  By his decision handed down on 1 June 2023[6], the Judge refused the application.

11.  On 2 June 2023, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

12.  In considering whether to extend time for appealing against the refusal of 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. 

13.  The applicant was eight weeks late when he filed the summons in the court below, which is not an insignificant delay. In his summons and supporting affirmation, he reiterated that he did not receive the Form CALL-1 and the court order, pointing out that the documents were lost in the post. He also stated that he only obtained copies of the documents by conducting a search of the court file.  

14.  We note from the court’s record that: (1) the Form CALL-1 and court order were sent on 15 February 2023 by post to the applicant’s address stated in the Form 86; (2) a different address was stated in the applicant’s summons filed on 27 April 2023 applying for extension of time to appeal; (3) owing to the fact that the address in the applicant’s summons was incomplete, the Court made enquiry with the Immigration Department on 22 May 2023 and obtained the full address of the applicant’s new address; and (4) on 15 June 2023, the Form CALL-1 and court order (previously sent on 15 February 2023) were returned to the court by the Post Office for the reason that there was “no such person”.  In light of these, we accept that the Form CALL-1 and court order were not delivered to the applicant. However, this is due to the applicant’s failure to inform the court of the change to his address. 

15.  We next turn to consider the merits of the intended appeal which is a more important consideration. In this regard, we 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]. 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 primary decision maker afresh as if it is a fresh application for judicial review.

16.  In the present case, the applicant’s appeal against the Director’s decision was dismissed by the Board on the basis that his evidence was incredible and his claim was fabricated and concocted.  Given that the Court will only interfere with the Board’s decision if it can be demonstrated that the decision is erroneous in law or irrational or there is procedural irregularity or unfairness, and the Form 86 and supporting affirmation had not set out any ground for seeking relief or made any challenge to the reasons and findings of the Board, the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted. 

17.  In this appeal, the applicant has not provided any ground to challenge the Judge’s decision. There is no basis for this Court to disturb the Judge’s decision. The intended appeal is bound to fail, and it would be futile to extend the time to appeal.

18.  By a letter dated 6 July 2026, the Director forwarded a letter dated 30 June 2026 from the applicant, and further informed the Court that the applicant’s letter mentioned about “withdraw … any appeals/ judicial review”. We note that the upper part of the applicant’s letter was handwritten in a foreign language. We are unable to understand its content as it is not accompanied by a translation in either of the official languages.  In the lower part of the letter, there is a typed paragraph which stated, among others, “Please withdraw all my cases in Hong Kong as I want to return to my home country as soon as possible.  My issues in my home country have been resolved, and I can return home.”

19.  For all the above reasons, we dismiss the summons filed on 2 June 2023.