RE ASIM MUHAMMAD

CAMP 226/2023, [2025] HKCA 407

On Appeal From [2022] HKCFI 1876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 226 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1711 OF 2021)

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J U D G M E N T

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

1.  On 13 June 2023, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 11 July 2022 ([2022] HKCFI 1876)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review.  On 1 June 2023, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 1334)  (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 6 December 2021 (“the Board’s Decision”)  and the decision of the Director of Immigration (“the Director”)  dated 23 June 2021 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”)[1].

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

4.  Subsequently, this court was notified by the Immigration Department on 13 September 2024 that the applicant had been removed voluntarily back to his home country.

BACKGROUND

5.  The applicant is a national of Pakistan.  He last arrived in Hong Kong as a foreign domestic helper on 3 August 2012 and was permitted to stay until 3 August 2014 or two weeks after termination of contract, whichever was earlier.  He did not leave Hong Kong on completion of his contract and overstayed.  On 3 March 2021, he surrendered to the Immigration Department.  On 4 May 2021, he expressed his intention to apply for non-refoulement claim and subsequently lodged a non-refoulement claim on the basis that, if refouled, he would be at risk of being harmed or killed by the uncle of his girlfriend (“the Uncle”).

6.  By a Notice of Decision dated 23 June 2021, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including the risk of torture[2], BOR2 risk[3], BOR3 risk[4], and persecution risk[5].

7.  The applicant subsequently appealed against the Director’s Decision to the Board.  On 1 December 2021, the applicant attended an oral hearing before the Board and gave evidence.

8.     By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision. After recapping the applicant’s case and considering all the relevant evidence, the Board found that his evidence was unconvincing and questionable in relation to his claim that he had been assaulted three times by the Uncle’s men: [64].  The evidence in his claim was also largely based on unsupported assertion and speculation: [63] and [65].  His assertion that the police denied his request to make a report was also questionable: [67].  The Board also found that the applicant’s claimed relationship with his girlfriend was only for a brief period in 2011 and that they did not have any contact afterwards.  It was thus unconvincing that after over 10 years, anyone would still want to look for him: [71] - [72]. The Uncle was also not a state actor and that the applicant was not seriously injured in any of the claimed incidents: [75].  The Board also considered the relevant Country of Origin Information (“COI”)  and found that state protection and internal relocation would be available to the applicant: [38] - [40].  The Board thus dismissed his appeal on the basis that he failed to substantiate his case on all applicable grounds.

9.  On 17 December 2021, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s and the Board’s Decision.  In his Form 86, he contended that the Director and the Board were not reasonable, and it was procedurally unfair and improper in the Board’s determination in that they failed to appreciate or give proper importance or weight to the presence of state acquiescence.  He claimed that corruption and incompetence of the administration in his home country was still a serious problem.  He further claimed that the Board had been unfair as they did not give him a chance to appeal or listen to his story.

10.  By a letter dated 23 May 2022, the applicant wrote to the court requesting to withdraw his judicial review as “[his] family was in talks with [his] enemies in Pakistan and [his] enemies agreed to resolve the issue”.  He thus the court “to close [his] case and take no further action on it as [he wants] to go back to Pakistan”.

11.  On 30 May 2022, the applicant filed an affirmation saying that he wanted to go back to his home country as all his problems “were finished” and his mother was very sick.  He therefore wanted to return to his home country and requested to withdraw his case.

THE JUDGE’S DECISION

12.  On 11 July 2022, after considering the applicant’s application and his request for withdrawal, the Judge refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [3] - [5] of the Leave Decision:

“3. The applicant filed an affirmation on 30 May 2022 to withdraw his application because he wants to go back home as his problems have finished and his mother is sick.

4. In accordance with the Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015:

‘It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7^th ed)  at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5^th ed)  at §18.18.1)  ….’ [67]

5.  The application is therefore dismissed.”

13.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.

14.  On 9 May 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was 9.5 months late with his intended appeal.  In his affirmation, he contended that he failed to receive the Leave Decision.

15.  On 1 June 2023, the Judge dismissed the applicant’s application, holding that the order dismissing the applicant’s application for leave to apply for judicial review was made pursuant to the applicant’s request for withdrawal.

THIS APPLICATION

16.  By a summons and a supporting affirmation filed on 13 June 2023 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, the applicant asked for leave to advance “a new sole ground of appeal” without specifying what the said ground was.

17.  In his supporting affirmation, the applicant stated:

“I am the Applicant herein. Leave me granted to me to appeal against the decision made by High Court Judge K.W. Lung on 1^st June 2023. Previously on the 30^th May 2022 I have withdrawn my leave application for Judicial Review by thinking that my problems were solved, but I was wrong. My life is still in danger in my country Pakistan. Therefore, I humbly request the Court to allow me to appeal out of time and give me a chance to explain.” (sic)

18.  Contrary to the directions of the Registrar of Civil Appeals dated 13 June 2023, the applicant did not lodge any written submissions on or before 27 June 2023.  On 11 August 2023, the applicant lodged his written submissions out of time.  In those submissions, he cited various legal and case authorities on the high standards of fairness and Wednesbury unreasonableness as well as section 37ZT of the Immigration Ordinance (Cap 115)  concerning the late filing of the notice of appeal before the Board.  However, the applicant failed to specify how those authorities and legal principles were relevant to his own case.

DISCUSSION

19.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

20.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

21.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

22.  Further, the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

23.  The applicant’s delay of 9.5 months was very significant.  He failed to give any reason, let alone good reason, for his serious delay.

24.  In any event, in our view, the present application is devoid of merit.  His allegations are all vague, bare and general in nature.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  He fails to specifically identify any error in the Leave Decision.  Clearly, his assertions are not proper grounds of appeal.  The Judge dismissed his application for leave to apply for judicial review based on the applicant’s own request for withdrawal. The applicant fails to point out any error in the Board’s Decision and the Leave Decision on public law grounds.  His intended appeal is a nonstarter.

25.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

26.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 13 June 2023 is dismissed.

27.  As mentioned above, on 13 September 2024, the court was notified by the Director that the applicant has been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.