RE MAHMOOD TARIQ

CAMP 264/2022, [2023] HKCA 606

On Appeal From [2022] HKCFI 790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 264 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2112 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.  Factual background

1.  On 30 March 2022, Deputy High Court Judge P. Li refused the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) concerning his non‑refoulement protection claim. 

2.  On 12 July 2022, the applicant’s application for extension of time to appeal against the said decision was dismissed by DHCJ To as there is no reasonable prospect of success in the intended appeal.

3.  On 21 July 2022, the applicant filed the present summons with the Court of Appeal seeking to extend time for appeal against the decision refusing leave to apply for judicial review.

4.  This summons is to be treated as a renewed application for leave to appeal out of time against the decision dated 2 August 2018: See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragraph 3 to 8.

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, 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.

6.  The applicant is a national of Pakistan.  He is 40 years old.  He entered Hong Kong illegally on 1 January 2016 and was arrested by the police on the same date.  He launched a non-refoulement claim on 3 January 2016.  He was released on recognizance on 24 January 2016.  The applicant claims that he would face harm if returned to Pakistan, due to his support of the Pakistan Tehreek-e-insaf (PTI) from a man named Mohammad Ijaz Bajwa (‘Ijaz’) and his subordinates, namely Mohammad Ilyas (‘Ilyas’) and Saeed Ahmed (‘Saeed’) who were all supporters of the Pakistan Muslim League (Nawaz) (PML(N)) in his village.  It appeared that Ijaz and his subordinates wanted to extort money and forced him to work for them, and the applicant had been attached several times by Ijaz and his men.

7.  The applicant stayed away from his home village for a period of time after having been assaulted in mid‑2013, but returned subsequently.  He then moved to another city and worked there without any problems.  Eventually he paid an agent who arranged for him to leave Pakistan for Guangzhou, and then another agent who arranged him to sneak into Hong Kong by boat.

II.   The Director’s decisions

8.  By a Notice of Decision dated 24 October 2017, the Director rejected the applicant’s claim on, torture risk, BOR 2 risk, BOR 3 risk, and persecution risk. 

9.  On 1 November 2017, the applicant appealed against the Director’s decisions to the Board.  An oral hearing was conducted on 27 February 2018.  The Board did not find that the applicant’s claims regarding his support for the PTI nor the problems he alleged had from Ijaz, Ilyas, Saeed or other PML(N) supporters as credible.   On this basis, it held that none of the applicable grounds for the applicant’s claims for non-refoulement protection had been made out.  The Board dismissed the appeal on 3 August 2018.

III.  The intended judicial review

10.  The applicant filed a Form 86 and an affirmation on 3 October 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  His affirmation did not specify any grounds.

IV.  The Judge’s decision

11.  The Judge was of the view that the applicant had failed to point out any error in the TCAB decision.  The applicant had been given ample opportunities to explain, yet his explanations were unacceptable.  The applicant was held to have failed to establish that there was a real risk of harm, and that he was not credible.  The Judge opined that the TCAB decision was reasonable, and there was no error in law or procedure.  Given that the case is not reasonably arguable, leave for judicial review was thus refused, and the application was dismissed on 30 March 2022.

V.   Grounds of intended appeal

12.  The applicant did not provide any grounds in his affirmation for this appeal, he only expressed the fact that he did not agree with the decisions.

13.  His written submissions repeated the same account of his alleged encounters in Pakistan, and expressed his disagreement with the decisions.

VI.  Analysis

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will take into account: 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.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The order was made on 30 March 2022.  The applicant took out a summons for leave to appeal out of time at the court below on 11 May 2022.  He was late by 28 days.

16.  The applicant claimed that the reason for his delay is that he did not receive the decision below.  According to the Court record, the decision below was sent by post to the address provided by him.  The mail was not returned.  The applicant’s explanation for his delay cannot be considered as justifiable as it is established that the litigant has the duty to give the Court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]). 

17.  Moreover, even if the Court is minded to accept any explanation in view of his delay in the present case, the Court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application.

18.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 

19.  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.  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.

20.  In the present application, the applicant has not put forward any ground to reverse the Judge’s decision.  The applicant failed to show that he has any reasonable prospect of success in his intended appeal, and he has not adduced any evidence to refute the Board’s findings as to his credibility.  For the above reasons, there is no prospect of success in his intended appeal, the summons filed on 21 July 2022 is dismissed.