RE ABDULLAH MUHAMMAD

CAMP 268/2022, [2023] HKCA 714

On Appeal From [2022] HKCFI 573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 268 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2050 OF 2018)

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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.  By a summons filed on 25 July 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 4 April 2022 refusing his application for leave to apply for judicial review ([2022] HKCFI 573)  (“the Leave Decision”).  Later, by a decision dated 27 June 2022, the Deputy Judge refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 1754)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 20 September 2018 (“the Board’s Decision”), and the decision of the Director of Immigration (“the Director”)  dated 17 January 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under 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 departed Pakistan for China on 13 November 2013.  He then arrived in Hong Kong illegally and was arrested by the police on 15 November 2013.  He was subsequently referred to the Immigration Department.  On 17 November 2013, he lodged a non-refoulement claim on the basis that he feared he would be harmed or killed by some smugglers of a smuggling case that his brother had solved.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.  On 1 February 2017, the applicant appealed against the Director’s Decision to the Board.  The applicant attended an oral hearing before the Board on 22 June 2018 and gave evidence with the assistance of a Punjabi interpreter.  Having considered the evidence, the Board considered that the applicant was not truthful about the matters and had no involvement in them whatsoever as claimed.  The Board found that no credence can be attached to any of his claims.  Accordingly, the Board found that the applicant failed to substantiate his claims on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 27 September 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  No ground of review was provided in his Form 86 or supporting affirmation.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

8.  By the Leave Decision, the Deputy Judge refused the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [12] - [18] of the Leave Decision:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)… …Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. Those grounds above are not valid in support of his application. Grounds (1)  and (2)  are his opinions. Ground (3)  is irrelevant as the adjudicator was aware he was not legally represented and that he is not a lawyer himself. Ground (4)  is simply irrelevant as the adjudicator has no duty to advise him he could complain.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.    I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The EOT Decision

9.  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. 

10.  On 23 May 2022, the applicant filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over one month late with his intended appeal.  In his summons and supporting affirmation, the applicant contended that he received the Leave Decision late in his mail box.

11.  By the EOT Decision, the Deputy Judge considered that as the applicant was unable to raise any valid ground to challenge the Board’s Decision, or point out any error of the Court in the assessment of his application, there was no realistic prospect of success in his intended appeal.  Accordingly, the Deputy Judge dismissed his application for extension of time to appeal.

The Present Application

12.  By a summons and supporting affirmation both filed on 25 July 2022, the applicant reapplied to this court for leave to appeal against the Leave Decision.  In his summons and supporting affirmation, the applicant only claimed that he disagreed with the Deputy Judge’s decisions.

13.  Contrary to the directions made by the Registrar of Civil Appeals on 25 July 2022, the applicant did not file any written submissions in support of his reapplication.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

16.  We consider that the applicant’s delay of over one month as substantial and the applicant did not give any reason, let alone good reason, for his delay.

17.  More importantly, the applicant’s appeal is clearly a nonstarter.  Nowhere in his summons or supporting affirmation did he identify any error in the Leave Decision with specific particulars.  Rather, he only made the bare allegation that he disagreed with the Deputy Judge’s decisions. Plainly, there is no proper ground of appeal and his intended appeal has no prospect of success.

18.  For the above reasons, it will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 25 July 2022 is dismissed.