RE MEHMOOD QASIR

CAMP 273/2021

[2021] HKCA 1531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 273 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2388 of 2018)

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J U D G M E N T

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Hon Chu JA (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 Judge Lung (“the Judge”)  dated 2 June 2020 refusing his application for leave to apply for judicial review. The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dated 2 October 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”)  dated 27 February 2018 rejecting his non-refoulement claim.

2.  The applicant has filed an affirmation and lodged a written submission in support of his application.  

3.  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 applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Pakistan aged 47.  He entered Hong Kong illegally and was arrested by the police on 4 February 2013.  He made a torture claim on 9 February 2013, which was refused by the Director on 27 June 2013.  His appeal to the Board was dismissed on 11 February 2014.  On 5 July 2013, he raised a non-refoulement based on fear of being harmed or killed by people belonging to the Pakistan Muslim League (Nawaz)  (“PLMN”)  because of his political affiliation with Pakistan People’s Party.   The details of the applicant’s claim were set out in the Director’s decision dated 27 February 2018 at [8] and the Board’s decision dated 2 October 2018 at [27] to [89].  We will not repeat them.    

5.  By his decision, the Director rejected the applicant’s claim on the BOR 3 risk[1], persecution risk[2] and BOR 2 risk[3] grounds.  There was no consideration of the torture risk[4] ground in light of the previous refusal of the torture claim.

6.  The applicant’s appeal against the Director’s decision to the Board was heard at an oral hearing on 25 June 2018.  By its decision, the Board dismissed the appeal.  While the Board accepted the background facts in the applicant’s claim, it considered there were serious credibility problems such that no credence could be attached to the core factual basis of the claim.  The Board held that the applicant had no political profile in which PLMN or its members would be interested and there is no real risk that he would experience harm if he were to return to Pakistan.  The Board also found that state protection and internal relocation alternatives are reasonably available which will reduce or negate any risk of harm, that he may face.  The Board concluded that he is not entitled to non-refoulement protection on any of the three applicable grounds being considered.

7.  On 29 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decisions.  The applicant did not provide any grounds for seeking relief.  He only stated in the supporting affirmation that the Director did not understand his situation.   

8.  The Judge listed the application for an oral hearing, but the applicant did not attend.  The Judge accordingly dealt with the application on the basis of the papers available before him.  By a Form CALL-1 dated 2 June 2020[5], the Judge refused the application for the reasons he gave at [14] to [16].  Primarily, the Judge considered that the applicant failed to show there was error in the Board’s decision and that the intended judicial review has any prospect of success. 

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 order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 16 June 2020.

10.  By a summons filed on 19 June 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the papers, and by his decision dated 2 July 2021 dismissed the application[6]. 

11.  Under Order 59 rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 22 July 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The application is late by 13 days.

12.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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 late by three days when he filed the 19 June 2020 summons, which is insubstantial.  The applicant merely stated in his affirmation that he did not receive the decision with no elaboration.  Despite this, in view of the Covid-19 situation around the time the Judge gave his decision, and the delay was a short one, we are prepared to excuse the delay, and will focus on the merits of the intended appeal.    

14.  In considering the merits of the intended appeal, 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].

15.  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 Board afresh as if it is a fresh application for judicial review.

16.  In the present application, the applicant had not provided any grounds to support his application in the summons and supporting affirmation.  In the written submission, he asserted that the leader and members of PLMN want to kill him.  He also stated that he did not understand why the Judge refused his application for extension of time to appeal.   

17.  We are of the view that what was stated in the written submission does not amount to viable ground of appeal.  The applicant did not provide any grounds for seeking relief in his application for leave to apply for judicial review.  Both in the application for extension of time to appeal made to the Judge and in the present application, the applicant has not pointed to any error in the Judge’s decision.  Notwithstanding this, we have examined the Board’s decision.  The Board had carefully considered and analysed his evidence and the applicable legal principles, and had given full and meticulous reasons for his finding of facts and conclusion on the law.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  In light of the Board’s rejection of the factual basis of the applicant’s claim, the assertion of fear of harm made in the written submission cannot stand.  We agree that the intended judicial review has no reasonable prospect of success, and the Judge was correct in refusing leave to apply for judicial review. 

18.  As the applicant’s intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 22 July 2021.