RE ASIF MUHAMMAD

CAMP 148/2023, [2024] HKCA 358

On Appeal From [2023] HKCFI 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 148 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2374 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.  On 11 April 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge To (“DHCJ To”)  dated 13 March 2023([2023] HKCFI 736)(“the EOT Decision”)  refusing to grant him an extension of time to appeal against an earlier order of Deputy High Court Judge P Li (“DHCJ Li”)  dated 10 September 2021 (“the Order”)  allowing the applicant to withdraw his application for leave to apply for judicial review (“the JR Leave application”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 11 October 2018, dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 14 December 2017 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to 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 claimed to have last entered Hong Kong illegally on 3 November 2013.  He was then arrested by the police for illegal remaining on the same day.  By a written representation dated 8 November 2013, he lodged a non­refoulement claim on the basis that if refouled, he would be harmed or killed by his cousin Imran and the political party he belonged to because the applicant had married his fiancée.

5.  By a Notice of Decision dated 14 December 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  On 11 October 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  After considering the evidence, the Board had doubts as to the applicant’s claims that he had been attacked on a number of occasions, but for the purpose of its decision, the Board accepted the applicant’s account as described.  However, the Board further found that the risk of harm befalling the applicant as low and that state protection and internal relocation would be available to him. Accordingly, the Board considered that he failed to substantiate his claim on all applicable grounds and dismissed his appeal and reaffirmed the Director's Decision.

7.  On 29 October 2018, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86.  In his supporting affirmation, he only stated that it would not be safe for him to return to his home country.

8.  On 2 September 2021, the applicant filed an affirmation that he wanted to go back to Pakistan as all his problems were solved and that his mother was sick and he wanted to return to meet her for the last time.  In substance, it was a withdrawal of his application for leave to apply for judicial review (“the Withdrawal Application”).

THE JUDGES’ DECISIONS

9.  Acceding the applicant’s Withdrawal Application, on 10 September 2021, DHCJ Li ordered that the JR Leave Application be withdrawn.

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Order 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.

11.  On 12 December 2022, the applicant applied by summons with a supporting affirmation for “leave to appeal out of time” against the Order.  By that time, he was almost one year and three months late with his intended appeal.  In his supporting affirmation (“the December Supporting Affirmation”), he alleged that was acting in person and that he received fresh information from his family that he would still face serious threats in his home country.

12.  On 13 March 2023, DHCJ To dismissed his application.  DHCJ To noted that that the Order was made at the applicant’s own request and upon his own application.  There was nothing for the applicant to appeal against.  In substance, his application was to re-open his JR Leave Application which he had withdrawn.  However, the Judge came to the view that his leave application was no longer extant and might not be reopened, unless he could demonstrate that the Order was a nullity because his decision to make the Withdrawal Application was the result of some vitiating elements such as mistake, misrepresentation and duress.  The applicant failed to demonstrate that there was any misunderstanding of any fact which led to his decision to withdraw the JR Leave Application.  Accordingly, DHCJ To held that the court was functus officio and that the applicant’s application for extension of time to appeal the Order, which effectively was an application to reopen his leave application, be refused.

THIS APPLICATION

13.  By a summons and a supporting affirmation filed on 11 April 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In his summons, he gave no reason for his delay or any grounds of his intended appeal.  In his supporting affirmation, the applicant stated that he understood he had a good ground of appeal that was not considered before the Judge but failed to specify what the said ground was.  He further alleged that he was unrepresented and did not have access to legal device.

14.  Pursuant to the directions of the Registrar of Civil Appeals dated 11 April 2023, the applicant lodged his written submissions on 25 April 2023.  In those submissions, he cited some case law and legal principles on “high standard of fairness” and Wednesbury unreasonableness.  However, he failed to specify with particulars how those legal propositions are relevant to his case.

DISCUSSION

15.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Order.

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

18.  In our view, the applicant’s delay of almost one year and three months is very substantial and inordinate.  The applicant has failed to give any reason, let alone good reason, to explain his delay.

19.  Further and more importantly, there is also no merit in the applicant’s intended appeal. As mentioned above, the Order to allow the withdrawal of the JR Leave Application was based on the applicant’s own affirmation, which is not retracted, indicating that his problems in his home country were all solved and that he wished to return to his home country, and thus this application to withdraw.  The December Supporting Affirmation about alleged fresh information of risks does not by itself amount to an operative mistake to vitiate the applicant’s said earlier voluntary position in support of the Withdrawal Application.  There was therefore nothing irregular for DHCJ Li to make the Order allowing the JR Leave Application to be withdrawn, and the applicant has failed to show why he could and should be allowed to re-open the JR Leave Application.  See: Re Manik Md Mahamudun Nabi [2022] HKCA 471 at [19] and Ferrolinon Jasmin Punto v Torture Claims Appeal Board [2023] HKCA 1073 at [14] - [17].

20.  In the premises, there is no prospect of success in the applicant’s intended appeal.

DISPOSITION

21.  The application for extension of time to appeal is refused, and the summons taken out on 11 April 2023 is dismissed.