RE KHAN AFTAB

CAMP 320/2022, [2023] HKCA 585

On Appeal From [2021] HKCFI 3783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 320 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2346 OF 2018)

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D E C I S I O N

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

I. Renewed application for extension of time to appeal

1.  On 25 October 2018, the applicant issued his application for leave to apply for judicial review by Form 86 against the decisions of the Director of Immigration (‘the Director’)  dated 24 June 2016 and 1 August 2017 regarding the applicant’s claim for non-refoulement. 

2.  By a decision dated 15 December 2021 ([2021] HKCFI 3783)  (‘the Decision), Deputy High Court Judge Bruno Chan : 1)  refused to grant the applicant an extension of time to apply for judicial review; and 2)  dismissed his application.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court (Cap. 4A) (‘RHC’), the applicant had 14 days to appeal against the Decision (by 29 December 2021).  The applicant took out a summons issued on 4 January 2022 seeking extension of time to appeal.  The applicant was out of time for a period of six days.  By a decision dated 10 August 2022 ([2022] HKCFI 2353), the Judge refused the applicant’s application for extension of time to appeal.

4.  By summons dated 30 August 2022 (‘the Summons’), the applicant renewed his application to this Court for extension of time to appeal.

5.  Pursuant to the directions of the Registrar of Civil Appeals dated 30 August 2022, the applicant was to lodge written submissions in support of his renewed application on or before 13 September 2022.  The applicant has lodged his written submissions as directed.

6.  Under Order 59, rule 14A(1)  of the RHC, 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.

II.  Factual background

7.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 19 March 2012, and was arrested by the police on 8 August 2012.  After he was referred to the Immigration Department for investigation, he raised a torture claim.  Upon the rejection of his torture claim, he then sought non-refoulement protection on the same basis.

8.  The basis of the applicant’s claim is that he would be harmed or killed by members of the Pakistan Muslim League (‘PML(N)’)  if he were to return to Pakistan, because he quitted the PML(N)  and joined the Pakistan People’s Party (‘PPP’).  He also says that he faces a risk of harm from a certain area member of PML(N).  That area member’s son was killed in a car accident in which the applicant’s brother was the subject driver.  The applicant’s brother fled Pakistan to avoid due process of law.  The area member was also a headmaster of a government high school and had a close and long-standing connection with government officials.  Hence, says the applicant, his relationship with PML(N)  worsened after the incident.

III.  The Director’s decision and the applicant’s aborted appeal to the Board

9.  By a decision dated 24 June 2016, the Director rejected the applicant’s claim covering all remaining applicable grounds (i.e. other than his torture claim which was already rejected), including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Bill of Rights (‘HKBOR’), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

10.  By a further decision dated 1 August 2017, the Director also rejected the applicant’s claim for non-refoulement protection under any other absolute or non-derogable rights under the HKBOR, including right to life under Article 2.

11.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (‘the Board’)  against the earlier decision of the Director, having filed his notice of appeal on 7 July 2016.  However, on 1 June 2018, the applicant applied via the Duty Lawyer Service to withdraw his appeal/petition as he considered it safe to return to his home country.  On 4 June 2018, the Board acceded to his request and directed that his appeal be withdrawn and confirmed the Director’s decision.

IV.  The Judge’s Decision

12.  On 25 October 2018, the applicant filed the Form 86 seeking to challenge both decisions of the Director, but not the decision of the Board.  In his supporting affirmation, the applicant explained that he withdrew his appeal/petition from the Board after hearing from his friends in Pakistan that his issues back there were already resolved, but recently he received a phone call from a friend in Pakistan that his enemies have heard of his return and have planned to kill him.  The applicant thus says that he faces fresh danger to his life.

13.  By the Decision, the Judge held that the applicant was seriously out of time in challenging the Director’s decisions.  Furthermore, the applicant did not advance any valid grounds in support of his application for leave for judicial review.  The applicant’s assertions were broad and vague without particulars. In any event, the applicant’s risks were localized and it is not unreasonable or unsafe for him to relocate to other parts of Pakistan, such that there is no justification to afford him with non-refoulement protection in Hong Kong. Leave was hence refused and the applicant’s application was dismissed.

14.  By the decision dated 10 August 2012, the Judge further observed that while a delay of six days in appealing may not be significant, the applicant did not give any explanation for his delay at all.  Furthermore, the applicant did not put forward any proper grounds of appeal, or any basis on which it may reasonably be said that the Decision was wrong.  The applicant’s application for an extension of time to appeal was hence dismissed, on the basis that the intended appeal was hopeless.

V.  Legal principles

15.  In considering whether to extend time to 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 an extension of time is granted.

16.  See, e.g., Re Chauhan Manish [2023] HKCA 431 [15].

VI.  Analysis

1)  Length of delay and reasons for delay

17.  In the applicant’s supporting affirmation filed on 30 August 2022, the applicant only stated that he did not agree with the Judge’s Decision.  No explanation has been given for the delay.  Nor did the applicant provide any reasons for his delay in his written submissions dated 13 September 2022.  We do not accept that there are any justifiable reasons for his delay.  In any event, we will also examine the merits of the applicant’s intended appeal.

2)  Prospect of the intended appeal

18.  The applicant’s submissions only contain vague and generalized assertions.  No valid ground of appeal is put forward.  The Judge has considered all the relevant matters, including the merits of the applicant’s case when he refused leave to apply for judicial review and dismissed his application.  We detect no error in the Judge’s analysis.

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

VII.  Disposition

20.  The intended appeal is unarguable.  It would be futile to grant an extension of time to appeal in those circumstances.  Accordingly, we dismiss the Summons.