RE AHMED INTIZAR

CAMP 302/2019

[2021] HKCA 526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 302 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 163/2018)

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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 Deputy High Court Judge Bruno Chan given on 26 July 2019 striking out and dismissing his application for leave for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 20 February 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 18 November 2015 and 29 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 31 October 2013 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 7 November 2013. 

3.  The applicant’s claim was based on threats from his paternal uncle who was said to be a wealthy and influential businessman with political connection.  The applicant claimed to have a land dispute with him.  The details of the applicant’s claim have been summarised by the judge at [2] to [8] of the CALL-1 Form.

4.  By a Notice of Decision dated 18 November 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 29 December 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 16 January 2017, the Board dismissed the appeal on 20 February 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

First application for leave for judicial review: HCAL163/2017

7.  On 28 April 2017, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  DHCJ Woodcock found that none of the applicant’s grounds was reasonably arguable and that there was no realistic prospect of success in the intended judicial review.  Leave for judicial review was refused on 26 January 2018.  

8.  The applicant did not appeal against the refusal of leave in HCAL163/2017.

Second application for leave for judicial review: HCAL 163/2018

9.  Instead, on 5 February 2018, the applicant made a second application in HCAL163 / 2018 to apply for judicial review against the same Board decision.  The applicant did not inform the court or the registry of his failed attempt in HCAL 163/2017.

10.  The applicant did not request an oral hearing and the judge accordingly dealt with the second application on paper.  The judge struck out and dismissed the application for leave to apply for judicial review in HCAL 163/2018 on 26 July 2019.  The judge held that that it was an abuse of process for the applicant to re-litigate his case by bringing a second judicial review in respect of the same Board decision.

Application for extension of time to appeal

11.  On 11 September 2019, the applicant sought leave to appeal out of time as he was late in bringing the intended appeal by two days.  His application was dismissed by the judge on 25 November 2019. 

12.  By a summons dated 29 November 2019, the applicant renewed his application before the Court of Appeal.  In the summons and the affirmation filed on the same day, the applicant said he was late in bringing the intended appeal because of his lack of knowledge and lack of resources.

13.  The applicant did not advance any ground to address the reasons given by the judge for striking out and dismissing his application.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

15.  The applicant did not disclose to the judge a previous unsuccessful application for leave to judicial review against the same Board’s Decision before DHCJ Woodcock in either his Form 86 or supporting affirmation.  This amounts to an abuse of process and thus the intended appeal should be struck out: Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763, per Lam VP at [22]; Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1].  More so, this also applies to an application to appeal out of time.  On this basis alone, this application should be dismissed (Nahid Mohammad [2020] HKCA 735, per Au JA).

16.  In any event, the applicant did not provide any ground of appeal.  There is simply no ground for this Court to intervene the judge’s Decision.

17.  In the circumstances, the applicant’s intended appeal has no merits at all and it would be futile to extend time.  Accordingly, we dismiss the applicant’s summons of 29 November 2019.

18.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.