RE MOHAMMED KHAN SHAMIM

CAMP 103/2023, [2024] HKCA 43

On Appeal From [2021] HKCFI 2672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 103 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 173 OF 2020)

________________

________________

________________

DECISION

________________

Hon Cheung JA (giving the Decision of the Court) :

1) Renewed application for extension of time to appeal

1.  On 16 January 2020, the applicant issued his application for leave for judicial review by Form 86 in HCAL 173/2020 out of time by over four months. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 10 May 2019 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 13 June 2018 rejecting his non-refoulement claim (that included all applicable grounds for non-refoulement other than torture claim). The applicant had erroneously stated in his Form 63 that the Board’s decision was dated 20 May 2019. The Director had also previously on 24 January 2014 rejected a torture claim made by the applicant.

2.  Under Order 53 rule 4 of the Rules of the High Court, the applicant had three months from the date of the Board’s decision (10 May 2019) to apply for a leave for judicial review in the Court of First Instance. The applicant only issued the application on 16 January 2020 which was over four months from 9 September 2019.

3.  The applicant on 26 August 2021 filed with the High Court Registry a letter seeking to ‘close’ his judicial review, stating that his problem was solved and he wished to go back to India.

4.  Deputy High Court Judge K W Lung dismissed the applicant’s application for leave to apply for judicial review and acceded to the applicant’s request to ‘cancel’ on 9 September 2021.

5.  Under Order 53 rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 23 September 2021). Being out of time for over eleven months, the applicant took out an application on 16 November 2022 requesting the Court to re-instate and restore his earlier application for leave to apply for judiciary review. The Judge on 1 December 2022 dismissed the applicant’s application.

6.  On 14 March 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

7.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2) Factual background

8.  Briefly stated, the applicant is an Indian national. He last entered Hong Kong in June 2007 but he overstayed. He was arrested by the Police on 3 December 2007 and released on recognizance. He was arrested by the Police for criminal offences on 19 May 2011 and sentenced to two years and 10 months’ imprisonment. He was discharged from prison on 20 January 2014 and was detained in Castle Peak Bay Immigration Centre on the same day.

9.  A removal order was issued against him on 19 February 2014 and on 25 February 2014. He was released on recognizance and required to report to the Director every six weeks. He failed to report as scheduled on 26 July 2016. He was arrested by the Police on 5 October 2016 for failure to answer to Immigration Department bail and transferred to Castle Peak Bay Immigration Centre for detention on 6 October 2016. He was released on recognizance on 31 October 2016. He was arrested by the Police for theft on 26 February 2018 and convicted and sentenced to a total of ten months’ imprisonment in Pak Sha Wan Correctional Institution. He committed various criminal offences while in Hong Kong.

10.  The basis of the applicant’s non-refoulement claim was that he would be harmed or killed by underground gangster groups who accused him of being an informer against them. He was also afraid that he would be harmed or killed by people from a garment company for not repaying trade debts owed by the applicant. He was attacked by a person called Wasim.

3) The Director’s Decision

11.  The Director’s decision dated 13 June 2018 covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), BOR Article 2 (right to life), as well as other statutory and convention rights against persecution (‘the Director’s Decision’) except for torture which was rejected earlier by the Director in another decision dated 24 January 2014.

4) The Board’s Decision

12.  The applicant appealed/petitioned against the Director’s decisions to the Board. An oral hearing was conducted on 18 December 2018 where the applicant was absent but the Board nevertheless considered the merits of the applicant’s case. The Board dismissed the applicant’s appeal/petition and the Director’s decision of 13 June 2018 was confirmed. The Board held that the applicant’s claim was not credible. There were inconsistencies and omissions in his claim. The Board held that since in a subsequent Director’s interview the applicant stated that he was only afraid of one of the persons from the garment company when asked if he was still afraid of the gangsters that were pursuing him, the gangster claim was no longer needed to be dealt with. The Board held :

‘ 67. ...The [applicant]’s initial claim related to threats from the gangsters and later from Wasim and his brothers. The gangster threat, dubious at best, fell away without proper explanation. The threat from Wasim also is dubious and, at its strongest, relates to a threat from a local businessman. The claim is that the [applicant] accumulated an impressive debt from a business model that exposed him to wholly unnecessary risk. Had he applied a sensible business model of dealing on consignment or of only supplying orders directly from the Maffooz Garments warehouse with cash on delivery or as an agent of Maffooz Garments, or some other supplier, he could have had a less risky business model.

68. ...Taken as a whole, the Petitioner’s actions suggest that he is in Hong Kong for reasons other than seeking non-refoulement protection.’

5) Decisions of the Judge

13.  In the Judge’s decision dated 9 September 2021, the Judge referred to the applicant’s withdrawal application and held that the applicant had no intention with proceeding with his application for leave for judicial review.

14.  In his decision dated 1 December 2022, the Judge held that his Order for dismissal dated 9 September 2021 was made upon the applicant’s request. The order was sealed, and the applicant’s application to have his action re-instated and restored cannot be fulfilled because the Court has no jurisdiction to restore it. The application was dismissed.

6) Legal principles

15.  In considering whether to extend time for appeal, the Court will have regard to :

(1) length of the delay;

(2) reasons for the delay;

(3) prospect of the intended appeal; and

(4) prejudice to the putative respondent if extension of time was granted.

7) Analysis

(1) Length of delay and reasons for the delay

16.  The applicant was over eleven months late when he issued his application dated 16 November 2020.

(2) Prospect of the intended appeal

17.  Under Order 53, rule 4 of the Rules of High Court, the applicant had three months from the Board’s decision to take out an application in the High Court for leave for judicial review.

18.  The applicant was over four months late when he filed his application for leave for judicial review. The applicant did not explain his delay. The applicant had further stated that he did not wish to proceed with his case.

19.  In the applicant’s summons, the applicant refers to certain attachments. In his affirmation, the applicant stated that the decision was reached unfairly, unreasonably and it was procedurally improper without explanations. In his written submission, the applicant repeated his allegation of unfairness. He cited generally principles that are used in non-refoulement cases without specifying how they relate to his case.

20.  In our judgment, the applicant does not have any prospect of success in his intended appeal. The applicant volunteered his request to ‘cancel’ (i.e. withdraw) his application for judicial review. The Judge had properly considered the relevant matters in dismissing his application. In any event the Director and Board had made factual findings against the applicant’s case and the applicant had not identified any error in their decisions.

21.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8) Disposition

22.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons filed on 14 March 2023.