ABDULLAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 116 /2024, [2026] HKCA 296

On appeal from [2023] HKCFI 1159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 116 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 477 OF 2022)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 10 May 2023, Deputy High Court Judge K W Lung dismissed the applicant’s application for leave to seek judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim upon his application to withdraw[1].

2.  On 5 February 2024, the applicant filed a summons to seek to re-open his application.  As the order of 10 May 2023 dismissing the leave application has been sealed by that time, the judge took the view that the court has by then become functus officio on the matter. Thus, the judge dismissed the applicant’s summons on 14 June 2024[2].

3.  On 2 July 2024, the applicant filed the present application with the Court of Appeal seeking leave to appeal out of time against the judge’s decision of 10 May 2023.

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 21 October 2020.  He was arrested by the police on 23 November 2020 and lodged a non-refoulement claim on 24 November 2020.  His claim was made on the basis that, if refouled, he would be harmed or killed by Irshad who was a rich and fearful landlord because of a land dispute.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 26 April 2021, the Director rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].  

6.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing with his legal representative before the Board on 11 January 2022.  His appeal was dismissed by the Board on 24 May 2022.

The intended judicial review

7.  On 15 June 2022, the applicant filed a Form 86 and an affirmation in HCAL 477/2022 to seek leave to bring judicial review against the decisions of the Director and the Board. 

8.  He filed an affirmation on 29 November 2022 stating that he wants to withdraw his application for judicial review because his life is no longer in danger in his country and wants to go back as soon as possible. Therefore, the judge dismissed his leave application on 10 May 2023.

Grounds of intended appeal

9.  His grounds stated in his supporting affirmation and written submissions may be summarised as follows:

(1)     he was unrepresented and did not have access to any legal advice;

(2)     high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(3)     the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis

10.  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.

11.  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 10 May 2023 and the applicant has already been late by more than 7 months when he took out the summons at the court below on 5 February 2024.  He explained that he was informed by his family members that it was dangerous for him to return to his home country after he applied to withdraw his judicial review.  He did not provide any evidence or particulars as to the information he received and when he received it.  Under these circumstances, the applicant’s explanation cannot justify the substantial delay.  Therefore, he must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125).

12.  The judge’s view that he was functus officio and had no jurisdiction to deal with the application to re-open the application is misplaced, as the judge had not considered the merits of the application and dismissed the application because of the applicant’s request to withdraw (Re Chamkaur Singh [2024] HKCA 457 at §16). 

13.  Nevertheless, in seeking to re-open his application at the court below, the applicant has to show good cause for doing so.  The applicant’s bare assertion that he was informed by his family it was dangerous for him to return to Pakistan is insufficient for the court to exercise its power to re-consider his application for leave to apply for judicial review.  Therefore, he failed to show any prospect of success in his intended appeal. 

14.  For the above reasons, we refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 10 May 2023 and dismiss the summons filed on 2 July 2024.