RE AWAIS IBRAR

CAMP 133/2023, [2024] HKCA 379

On appeal from [2022] HKCFI 3397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 133 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 136/2020)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 8 November 2022[1] (“the JR Decision”, as contained in “the CALL-1 Form” dated the same) dismissing the applicant’s application for leave to apply for judicial review.

2.  The applicant, had by a Form 86 filed on 14 January 2020 (“the Form 86”), sought leave to apply for judicial review (“the JR Application”) against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 9 January 2020 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 September 2019 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim, as well as the Director’s Decision itself.

3.  In the Form 86, the applicant, apart from setting out his grounds for judicial review, requested that an oral hearing be fixed for the determination of the JR Application.

4.  However, by an Affirmation filed on 20 September 2022 (“the Withdrawal Application”), the applicant applied to the Judge for withdrawal of the JR Application by reason that the situation in his home country, Pakistan, “has been sorted and [he is] able to return”.  He also stated that he “no longer [needs] to claim asylum in Hong Kong”.

5.  By an order made on 8 November 2022, the Judge ordered that the JR Application be dismissed.

6.  Noting the applicant’s previous request for an oral hearing for the JR Application, and notwithstanding that the Judge understandably dismissed it upon considering the Withdrawal Application and that applications of this kind (such as the present renewed application for extension of time to appeal) are usually determined by this court on the papers, this court has, in the interest of fairness, on its own motion directed that a hearing be fixed on 9 April 2024 in order that the applicant be afforded an opportunity to make oral submissions to this court in support of the present application.

Background to the applicant’s non-refoulement claim

7.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 19 July 2019, and was arrested by the police 25 July 2019.  Thereafter, on 26 July 2019, the applicant lodged a non-refoulement claim.  

8.  The applicant’s claim was based on a fear of being harmed or killed by members of the Pakistan Muslim League (Nawaz) Party, certain members of the Shia Sect and the family of his girlfriend.  

9.  By a Notice of Decision dated 30 September 2019 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk^[2], the BOR 2 risk^[3], the BOR 3 risk^[4] and the persecution risk^[5].

10.  The applicant appealed against the Director’s Decision to the Board.  The applicant’s appeal was dismissed by the Board’s decision dated [9 January 2020] (i.e. the Board’s Decision).

The Judge’s decision

11.  By the Form 86, the applicant sought to judicially review the Board’s Decision, and purportedly also the Director’s Decision, as well as setting out his grounds for review.  Insofar as the same relate to the Board’s Decision, the applicant’s grounds of review were essentially that the Board, inter alia, acted unreasonably and unfairly by according too much weight to the relevant Country of Origin Information, as well as acting improperly and unfairly when rejecting explanations proffered by the applicants.

12.  By reason of the applicant’s request for withdrawal made in the Withdrawal Application, the Judge dismissed the JR Application (see [3]-[5] of the CALL-1 Form):

“3.  The applicant filed an affirmation on 20 September 2022, in which he said he would like to withdraw his case because his problems had been sorted out and he is able to return to his family.

4.  In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

‘(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.’

5.  The application is therefore dismissed.”

The present application for extension of time to appeal

13.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the his last known address, being his address at Hop Choi Street, Yuen Long (“the Address”), on 8 November 2022, and were not returned undelivered.  

14.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 8 November 2022.

15.  The applicant thereafter took out a summons in the Court of First Instance on 26 January 2023 seeking extension of time to appeal, in which his address was stated to be the Address.

16.  In the summons and his supporting affirmation filed on the same date, he claimed that he “did not get the High Court decision” and he had come to learn of the Judge’s decision from an immigration officer. 

17.  The applicant’s application to appeal out of time was dismissed by the Judge on 16 February 2023[6].

18.  By a summons filed on 31 March 2023, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant repeated that he did not receive the CALL-1 Form on time and that he disagreed with the Judge’s decision, without elaboration.  He also claimed that in fact, the problem which allegedly awaits him in Pakistan was “not solved”.

19.  In breach of the directions made by the Registrar of Civil Appeals on 23 January 2024, the applicant failed to lodge written submissions with this court not less than 28 days before the hearing of the application.  He is thus deemed to have waived his right to rely on written submissions for this application.

20.  We heard the application on 9 April 2024.  The applicant appeared in person at the hearing, and with the assistance of an interpreter, submitted that the “problems” in his home country were still unresolved and therefore he could not safely return.  He also indicated that he wished to submit certain documents for this court’s consideration.  However, as those documents (the nature and relevance of which were unknown) were not placed before nor considered by the Board and the Judge in the proceedings below, we did not consider it appropriate, and therefore declined, to have regard to them in the determination of the present application.

Discussion

21.  As noted above, the Judge’s decision was sent to the last known address of the applicant and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

22.  There is no explanation on the part of the applicant as to when he had come to learn of the Judge’s decision dated 8 November 2022.

23.  In the circumstances, we reject the applicant’s explanation or reason for the delay in lodging the intended appeal.

24.  For the following reasons, we are of the view that the present application for extension of time to appeal falls to be dismissed by reason that the intended appeal is wholly lacking in merits.

25.  The Judge’s dismissal of the JR Application was based on the application, by the applicant on his own motion, to withdraw the same.  It was clearly appropriate in the circumstances for the Judge to make the order he did instead of leaving the application at large.  Given the applicant’s withdrawal of the JR Application, it was not necessary for the Judge to adjudicate on the merits.  See Re Manik MD Mahamudun Nabi [2022] HKCA 471, at [19].

26.  We should add that the grounds for review (insofar as the same relate to the Board’s Decision) as set out in the applicant’s Form 86 are broad-brush and lacking in particulars, and disclose no error on the Board’s part.

27.  In the premises, there is clearly no prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 31 March 2023 is accordingly dismissed.