RE RIASAT KHAN

CAMP 64/2023, [2023] HKCA 1223

On Appeal From [2022] HKCFI 2649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 64 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1077 OF 2019)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 11 October 2022, DHCJ K. W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  On 2 December 2022, the applicant took out a summons to apply for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 17 January 2023. 

3.  On 13 February 2023, the applicant filed a summons in CAMP 64/2023 (“the Summons”) with the Court of Appeal for extension of time to appeal against the JR Decision.  He lodged his written submissions on 1 March 2023.

4.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

5.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 16 December 2013 and was arrested by the police on 18 December 2013.  On 19 December 2013, he lodged a non‑refoulement claim alleging that if refouled, he would be harmed or killed by members of the Taliban because he refused to let them into the Government College of Management Science (where he worked as a gardener) to conduct a suicide attack.  The factual background of this case was succinctly summarised by the Judge at [4] – [5] of the JR Decision ([2022] HKCFI 2649).

6.  By a Notice of Decision dated 17 June 2016 and Notice of Further Decision dated 25 October 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

7.  The applicant appealed against the Director’s decisions to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 20 November 2017.  By its decision dated 19 January 2018, the Board dismissed the appeal.  The Board found the applicant’s evidence to be unreliable because of material inconsistencies and lack of details, for which he was unable to give any satisfactory explanation.  Although the Board accepted that the applicant suffered injuries on his abdomen and back, it did not accept the applicant’s assertion that the injuries were inflicted by the Taliban as there was no medical evidence before the Board to indicate the cause of the injuries and when they were inflicted.  Furthermore, even on his own case, the applicant faced no problems from the Taliban after one alleged incident, which showed that the Taliban had no ongoing interest in him.  For the aforesaid reasons, the Board concluded that the applicant failed to establish his claim on any of the applicable grounds.

Application for leave to start judicial review

8.  On 23 April 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  In his supporting affirmation, he only stated that he was not satisfied with the Board’s decision as he was tortured in his country and his life is in danger in Pakistan.

The JR Decision

9.  The Judge considered the leave application on paper as the applicant did not request an oral hearing.  After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [19] - [20] of the JR Decision:  

“19. Those grounds in paragraph 15 above have been rejected by the Board and are not valid reasons to challenge the Board’s Decision.

20. 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.”

Application for extension of time to appeal against the JR Decision

10.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 2 December 2022 for an extension of time to appeal.  That was dismissed by the Judge on 17 January 2023.  Hence, the Summons to this court.

Discussion

11.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

12.  As for (1), the applicant was late by more than 4 weeks when he filed the time extension summons with the Court of First Instance, which is substantial.

13.  As for (2), the reasons for the delay, the applicant explained in the affirmation filed with the court below that he did not see the decision earlier as it was put into the wrong letter box.  He only found it after his case officer from the Immigration Department told him about the result of his case.  It is somewhat surprising that the letter was left in the wrong box for such a long period.

14.  Be that as it may, the most important consideration is (3), the prospect of success of the intended appeal from the JR Decision. 

15.  The applicant did not provide any valid ground of his intended appeal in the Summons and supporting affirmation filed with this Court.

16.  In his written submissions, he reiterated his factual allegations.  He further submitted that the Director only believed in documents but he was unable to provide suitable documents as it was not possible for him to bring any documents when he left his country.  He did not identify what documents he had.  He also contended that there were many errors in the process, without specifying which he was referring to.

17.  The said complaints were not raised in the applicant’s application for leave in the court below.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds have failed at the court below: Re Qadir Sher [2018] HKCA 160 at §11. 

18.  In any event, his non-refoulement claim was not rejected by the Board for lack of documentary evidence.  The Board identified many problems in his evidence for which the applicant failed to give satisfactory explanation.  He also failed to explain why he could not ask his family to send whatever documents he might claim to have in support of his case, as his family is still living in Pakistan. 

19.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.   

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 13 February 2023.