RE ADIL KHAWAJA

CAMP 391/2022, [2023] HKCA 737

ON APPEAL FROM [2022] HKCFI 1432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 391 OF 2022

(ON APPEAL FROM HCAL NO. 924 OF 2019)

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J U D G M E N T

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

I. Renewed application for extension of time to appeal

1.  On 4 April 2019, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 15 March 2019 which dismissed his appeal against the decision of the Director of Immigration (the ‘Director’)  dated 23 February 2018 rejecting his claim for non-refoulement protection.

2.  In his decision of 30 May 2022 (the ‘Decision’), Deputy High Court Judge KW Lung refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the Decision.  Being out of time, the applicant took out an application on 18 July 2022 before the Judge requesting an extension of time to appeal.  The Judge on 9 August 2022 rejected the applicant’s application.

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 28 September 2022 (late for over six weeks), the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

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.

II. Background

6.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 30 April 2016.  He surrendered to the Immigration Department on 4 May 2016.  He then raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his cousin Asad.

7.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of the Decision.

III. The Director’s Decision

8.  The Director decided against the applicant’s claim on 23 February 2018.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (the ‘Director’s Decision’).

IV. The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 10 January 2019, the Board dismissed the applicant’s appeal on 15 March 2019 (the ‘Board’s Decision’).

10.  The Board found the applicant’s case vague, unbelievable and lacking documentary support.  The Board refused to accept his evidence.  The Board also found that there was no indication of state involvement and that internal relocation was possible.  The Board therefore rejected his claim and dismissed the appeal.

V. Decision of the Judge

11.  The applicant filed a Form 86 and a supporting affirmation on 4 April 2019.  He did not put forward any ground for seeking relief in his Form 86.  In his affirmation, he merely claimed that his life was still in danger if returned to his home country.

12.  The applicant did not request an oral hearing before the Judge.  The Judge decided that it was appropriate to determine the application on paper without an oral hearing.

13.  Even though the applicant did not identify any error of law, irrationality or procedural unfairness in the proceedings before the Board or its decision, the Judge considered the Director’s Decision and the Board’s Decision with rigorous examination and anxious scrutiny.  The Judge did not find any error of law or procedural unfairness, nor ground to challenge the Board’s Decision as Wednesbury unreasonable or irrational.  In the premises, the Judge was not satisfied that there was any realistic prospect of success in the applicant’s intended application for judicial review and accordingly refused the leave application.

14.  In his decision of 9 August 2022, the Judge refused the applicant’s application for extension of time to appeal on the basis that the intended appeal had no reasonable prospect of success.

VI. 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.

VII. Analysis

1)  Length of delay and reasons for the delay

16.  The applicant was late for over five weeks when he filed his application for extension of time to appeal before the Judge.  His renewed application to this Court was again late by over six weeks.  The applicant did not provide any explanation for the serious delay.  Nevertheless, we shall focus on the merits of this case.

2)  Prospect of the intended appeal

17.  The applicant did not provide any proposed grounds of appeal.  In his written submissions, he repeated the gist of his non-refoulement claim and merely asserted, without any particular or elaboration, that ‘the adjudicator did many wrong’.

18.  We agree with the Judge that there is no prospect of success in the intended appeal.  The Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

19.  Furthermore, the Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

20.  In the present case, the applicant has not identified any proper grounds of appeal or errors committed by the Judge.  The intended appeal is completely devoid of merits.

VIII. Disposition

21.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 28 September 2022.