RE EHSAN UL HAQ alias HAQ UL EHSAN

CAMP 44/2022

[2022] HKCA 365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 44 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2921 OF 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge P Li (“the Judge”) dated 12 November 2020[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation. Despite directions given by the Registrar of Civil Appeals, he has not lodged any written submission.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Pakistan aged 34. He entered Hong Kong illegally and was arrested by the police on 9 October 2009. On 12 October 2009, he made a torture claim which was processed as a non-refoulement claim upon the commencement of the Unified Screening Mechanism in March 2014. The applicant’s claim is based on his fear of being harmed or killed by some Pakistani government agencies because he had refused their request to help them obtain information from the Indian Army. The details of the applicant’s claim were set out in the decision of the Director at [6]. We will not repeat them.

5.  By his decision dated 3 July 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds. The applicant appealed the decision to the Torture Claims Appeal Board (“the Board”). The Board heard the appeal on 25 April 2006, and by its decision dated 9 November 2016 dismissed the appeal. In summary, the Board found the material facts underlying the applicant’s case to be vague and that they could not afford any evidential basis for his claim. The Board further considered that even accepting the applicant’s case, it did not meet the requirements for establishing non-refoulement protection under the torture risk, BOR 3 risk and persecution risk grounds.

6.  By a further decision dated 24 February 2017, the Director assessed the applicant’s claim under the BOR 2 risk^[5] ground and decided against it. The applicant appealed against the Director’s further decision. The Board decided not to hold an oral hearing and by its decision dated 22 November 2018 (“the Board’s second decision”) dismissed the appeal. Principally, the Board noted that the applicant did not make any further representation to the Director despite being invited to do so. The Board also found no new material or basis for his claim had been put forward by the applicant in the appeal. The Board concluded that the applicant failed to establish his entitlement to non-refoulement protection under the BOR 2 risk ground.

7.  On 19 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s second decision. He did not put forward any grounds for seeking relief.

8.  The Judge dealt with the application on paper, and refused to give leave to apply for judicial review. Principally, the Judge agreed with the Board’s conclusion that there was no evidence to show any risk of arbitrary deprivation of life. The Judge also did not find any error of law, irrationality or procedural irregularity in the Board’s decision.

9.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. The time for the applicant to appeal the Judge’s decision expired on 26 November 2020.

10.  By a summons filed on 27 May 2021, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper and, by his decision handed down on 9 September 2021[6] refused the application.

11.  On 8 February 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

12.  In considering whether to extend time for appealing against the refusal of 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.

13.  The applicant was six months late, which is a serious delay. He explained in the application made to the Court of First Instance that he did not receive the court documents. We note that the address he gave in the summons filed on 27 May 2021 differed from that stated in his Form 86, to which the Form CALL-1 and the Court order were sent. This suggests that the applicant had changed his address but failed to inform the Court. As it is his responsibility to update the Court of changes in his address, we are not satisfied that the applicant has satisfactorily explained the serious delay. In the circumstances, the applicant must show that his intended appeal has a real prospect of success.

14.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  In the present application, the applicant only asked that the time for appealing be extended, but did not provide any ground in support of his intended appeal.

17.  We have in any event considered the Board’s decisions. We do not discern any viable ground to disturb the Board’s second decision to dismiss the appeal against the Director’s further decision. We agree that the intended judicial review has no prospect of success and the Judge was correct in refusing to give leave to apply for judicial review.

18.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 8 February 2022.