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CAMP 586/2021
[2022] HKCA 506
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 586 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 1997/2018)
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| RE: |
MEHMOOD MUHAMMAD NAEEM SHAHID |
Applicant |
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Before: Hon Chu JA and Barma JA in Court
Date of Judgment: 22 April 2022
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 16 December 2021 refusing to grant leave to the applicant to appeal against the Judge’s order dated 9 January 2019, which, upon the applicant’s own application, granted leave to the applicant to withdraw his intended application for leave to apply for judicial review.
2. The intended judicial review was against (i) the decision of the Director of Immigration (“the Director”) dated 30 April 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim; and (ii) the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 10 September 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the Director’s Decision.
Background
3. The applicant is a national of Pakistan. He illegally entered Hong Kong on 15 December 2014, and thereafter surrendered himself to the Immigration Department on 8 October 2015. He lodged a non-refoulement claim on 4 November 2016.
4. In gist, the applicant’s claim was based on a fear of death or serious harm by gang members who targeted his father in Pakistan.
5. By a Notice of Decision dated 30 April 2018, the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[1], the persecution risk[2], the “BOR 2” risk[3] and the “BOR 3” risk[4].
6. The applicant appealed to the Board. After a hearing on 8 August 2018, the Board dismissed the appeal on 10 September 2018. The Board’s Decision covered all four grounds for non-refoulement protection.
The Judge’s order
7. The applicant filed a Form 86 on 20 September 2018 with a supporting affirmation, in which he repeated the dangers he may face if he returned to Pakistan, as well as setting out his grounds of judicial review, including inter alia, failure by the Director and the Board to take into consideration “all matters raised in my claim” in reaching their Decisions, and that their Decisions were “unreasonable”.
8. On 7 January 2019, in a letter from the applicant to the court, he stated:
“I would like to update to the Honourable Court that I withdraw my Judicial Review… I want to go back to Pakistan as soon as possible. I am safe to go home. I want to cancel all my Non-Refoulement Claims in Hong Kong.”
9. The Judge, rightly treating the applicant’s letter as an ex parte application for withdrawal of his application for leave for judicial review, ordered on 9 January 2019 that “leave to apply for Judicial Review be withdraw”, by which it is taken to mean that the applicant’s application by way of his Form 86 for leave to apply for judicial review be withdrawn (“the Order”).
The present application for extension of time to appeal
10. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal, but he failed to do so.
11. On 10 November 2021, almost three years after the making of the Order, the applicant took out a summons in the Court of First Instance seeking to “appeal” (which the Judge rightly treated as an extension of time to appeal) against the Order and to re-open his application for leave for judicial review. In the summons and the supporting affirmation, the applicant claimed that:
(1) on 12 February 2019, he voluntarily returned to Pakistan;
(2) on 6 May 2019, his “enemies” entered his home, attacked him, and “straight fired to us with Modern Weapons (Guns)”;
(3) although he managed to escape from this attack, his wife and his daughter were killed on the spot by the gang.
12. The applicant’s application to appeal out of time was dismissed by the Judge on 16 December 2021[5].
13. By a summons filed on 23 December 2021, the applicant renewed his application for an extension of time to appeal before this court. In the summons, the applicant stated that he would like to seek leave to appeal against the Judge’s decision dated 16 December 2021, being the Judge’s refusal to grant an extension of time for him to appeal against the Order dated 9 January 2019. Although the application purported to seek leave to appeal against the decision dated 16 December 2021, we shall treat it as a renewed application for an extension of time to appeal against the Order of 9 January 2019, by which the applicant’s application for leave for judicial review was withdrawn.
14. In his supporting affirmation, the applicant repeated the matters stated in his summons filed on 10 November 2021 in the court below.
15. In his written submissions dated 5 January 2022, the applicant repeated the dangers he had allegedly faced since returning to Pakistan in 2019. He further alleged that on 15 November 2019, he was attacked by his enemies “with the aim to kill” him. He was allegedly open fired upon by members of the local gang, and his friend was seriously injured as a result.
Discussion
16. Having considered the papers and the applicant’s written submissions, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
17. First, we note that the Director’s Decision and the Board’s Decision were respectively dated in April and September 2018. In reaching these decisions, the Director and the Board had considered the applicant’s claims and events which occurred prior to 4 November 2016 (the date he lodged his non-refoulement claim), or indeed, prior to 15 December 2014 (the date he illegally entered Hong Kong). His application for leave for judicial review by the Form 86 filed on 20 September 2018 must also only have been based on the events which have occurred prior to his entry into Hong Kong.
18. Before his application for leave for judicial review was heard by the Judge, the applicant by letter dated 7 January 2019 applied to withdraw his application, stating that the issues and dangers he had faced (or had feared of facing) in Pakistan were resolved, which resulted in the making of the Order.
19. The applicant’s subsequent summons filed on 10 November 2021 in the court below, seeking leave to appeal against the Order out of time, was however based on events which occurred in or after February 2019, which are entirely unrelated to his original non-refoulement claim and which also did not form any part of the basis of his Form 86 in these proceedings. Nor were these subsequent events, which occurred in 2019, considered by the Director or the Board in reaching their respective Decisions.
20. We agree with the Judge, as he stated in [13] of his decision dated 16 December 2021, that the proper course for the applicant is to apply to the Director for a subsequent non-refoulement claim. As the applicant had sought to appeal against the Order on the basis of newly developed and unrelated facts, we are satisfied that the intended appeal is not reasonably arguable and utterly devoid of merit.
21. As a matter of principle, no extension of time should be granted in respect of hopeless appeals. Accordingly, the summons filed on 23 December 2021 is dismissed.
(Carlye Chu)
Justice of Appeal |
(Aarif Barma)
Justice of Appeal |
The applicant acting in person
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5] [2021] HKCFI 3677
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