RE JAHANGIR MOHSIN

CAMP 234/2021

[2021] HKCA 1614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 234 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 3847 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for leave to appeal out of time against the decision of Deputy High Court Judge K W Lung (“Judge”) on 12 April 2021[1] dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 20 December 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 23 September 2019 rejecting the applicant’s non‑refoulement claim.

2.  On 16 June 2021, the Judge refused to grant an extension of time for the applicant to appeal against his decision of 12 April 2021.

Background

3.  The applicant is a Pakistani national.  He was arrested by the police in Hong Kong on 25 July 2019.  He was referred to the Immigration Department on 26 July 2019 and lodged a non‑refoulement claim the same day.

4.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by his girlfriend’s family who were opposed to their relationship.  The factual background of his claim was set out at paragraphs 6.1 to 6.39 of the Director’s decision.

5.  By notice of decision dated 23 September 2019, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  These included BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

6.  The applicant appealed to the Board against the Director’s decision.  On 20 December 2019 the Board dismissed the applicant’s appeal. 

The Judge’s decisions in the court below

7.  On 24 December 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  However, the applicant subsequently filed an affirmation on 30 March 2021, in which he requested to withdraw his judicial review application and stated, inter alia, that his mother was suffering from terminal cancer, that he wished to return to Pakistan as soon as possible, and that his situation had been sorted out and he no longer needed to claim asylum in Hong Kong.  He attached a notice of discontinuance of the application for leave for judicial review.

8.  As a result, following consideration of the documents only, on 12 April 2021 the Judge acceded to the applicant’s request and dismissed the application for leave to apply for judicial review.  In light of the applicant’s position, the Judge did not consider whether there was any ground for judicial review of the Board’s decision.

9.  On 10 May 2021, however, the applicant took out a summons to seek an extension of time to appeal against the decision of the Judge.  In his supporting affirmation, he referred to his previous affirmation of 30 March 2021 and deposed that he was wrong in thinking that his problems were solved.  He claimed that his life was still in danger in Pakistan.  He requested that the court reopen and grant his application for leave for judicial review.

10.  In his decision dated 16 June 2021,[6] the Judge stated that once the application for leave for judicial review had been dismissed, there was no jurisdiction to reopen it under Order 53 of the Rules of the High Court (Cap 4A).  Moreover, as the dismissal was based on the circumstances at the time of the applicant’s request to withdraw his application, the Judge did not see any error in his decision or any reasonable prospect of success in the intended appeal, and refused to grant an extension of time and dismissed the summons accordingly. 

The renewed application before this Court

11.  On 30 June 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 12 April 2021 dismissing the application for leave to apply for judicial review.  In his supporting affirmation, the applicant stated that the Judge made his decision unfairly without allowing him an opportunity to clarify his case and the situation in his country.

12.  The Registrar of Civil Appeals directed on 30 June 2021 that the applicant must lodge his written submissions with the court by 14 July 2021, failing which the application would be processed based on the available documents and materials.

13.  The applicant has to date failed to avail the opportunity of lodging any written submissions.  We consider it appropriate to determine this application on paper, based on the available documents and materials.

Discussion

14.  In the present case, the Judge dismissed the application for leave to apply for judicial review, having regard to the applicant’s affirmation of 30 March 2021 in which he requested to withdraw his application.  In his decision of 12 April 2021, the Judge noted that he was acceding to the applicant’s request.  There is therefore nothing in the Judge’s decision of 12 April 2021 that the applicant can appeal against.  The intended appeal in this case is clearly incompetent, and liable to be struck out.  The Court of Appeal has inherent jurisdiction to strike out an incompetent appeal.

15.  For these reasons, we strike out and dismiss the summons dated 30 June 2021.