RE SHAFIQ MUHAMMAD

CAMP 459/2022, [2024] HKCA 998

On Appeal From [2022] HKCFI 1080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 459 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2327 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.  By a summons filed on 3 November 2022, the applicant reapplied to this court for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 19 April 2022 refusing to grant the applicant leave to apply for judicial review ([2022] HKCFI 1080) (“the Leave Decision”).  By a subsequent decision dated 20 September 2022, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 2741) (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 7 September 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 2 December 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

4.  Subsequently, by way of a Request for Dismissal of Appeal dated 3 November 2023, the applicant requested to withdraw the present reapplication for extension of time to appeal.  On 13 September 2024, this court was notified by the Immigration Department that the applicant had been removed voluntarily back to his home country

5.  On the basis of his request to withdraw his application on 3 November 2023, we dismiss the applicant’s present reapplication for extension of time to appeal.  In any event, the present reapplication fails for lack of merits, which we will dismiss as explained further below.

Background

6.  The applicant is a national of Pakistan.  He claimed to enter Hong Kong illegally on 18 March 2016 and he was arrested by the police on the same day.  By various written significations made between April and May 2016, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by some members of the ruling party the Pakistan Muslim League (Nawaz), but he supported another political party.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

7.  By the Director’s Decision, the Director rejected the applicant’s non‑refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

8.  The applicant then appealed the Director’s Decision to the Board.  He attended an oral hearing before the Board on 17 July 2018 with legal representation.  The Board dismissed his appeal on 7 September 2018 and confirmed the Director’s Decision.  Having assessed the evidence, the Board did not consider the applicant to be a reliable witness.  The Board found on the evidence that the applicant had not made out a case where he required non-refoulement protection.  The Board also considered that state protection and internal relocation would both be available to him upon refoulement.

The Leave Decision

9.  On 24 October 2018, the applicant filed a Form 86 with a supporting affirmation to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86 or in his supporting affirmation.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

10.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [12] ‑ [18] of the Leave Decision:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. The applicant has not been able to raise any valid ground to challenge the Board’s Decision.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

18. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The EOT Decision

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

12.  On 12 August 2022, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By then, he was over three months late with his intended appeal. 

13.  By the EOT Decision, the Deputy Judge refused his application for extension of time to appeal, holding that the applicant had failed provide any reason for his delay or to provide any valid grounds to show he had any reasonable prospect of success in his intended appeal.

The Present Application

14.  By a summons filed on 3 November 2022 together with a supporting affirmation, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, he requested for extension of time to appeal without providing any ground in support of his application.  In his supporting affirmation, he merely stated that he did not receive the Leave Decision in time and he disagreed with the Deputy Judge’s decisions as the Deputy Judge failed to find any error in the decision that dismissed his claim.

15.  In his written submissions lodged on 17 November 2022, the applicant claimed that his life would not be safe in his home country as his enemy was powerful and influential.  He also complained that the court did not give him a chance to appeal.

Discussion

16.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

17.  We consider that the applicant’s delay of over three months is very substantial and we agree with the Deputy Judge that the applicant has failed to give any good reason for his delay.  Accordingly, the court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

18.  The general approach in dealing with appeals in non‑refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

19.  In our view, the applicant’s intended appeal is clearly without merit.  Nowhere in his summons, supporting affirmation or written submissions did he identify any error in the Leave Decision with specific particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Accordingly, his assertions are not viable grounds of appeal and his intended appeal must fail on this basis alone.

20.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time. We would therefore have also dismissed the applicant’s summons filed on 3 November 2022 on merits in any event. We further make no order as to costs.

21.  On 13 September 2024, the court was notified by the Director that the applicant has been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.