RE ATIF IKHLAQ

CAMP 9/2023, [2023] HKCA 1186

On Appeal From [2022] HKCFI 2681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 9 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 426 OF 2019)

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J U D G M E N T

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

1.  On 29 August 2022, Campbell Moffat J (“the Judge”) refused to grant leave to the applicant for leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance on 4 November 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 12 December 2022.

3.  On 9 January 2023, the applicant filed a summons in CAMP 9/2023 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the Judge’s decision dated 12 December 2022. This summons is to be treated as a renewed application for leave to appeal out of time against the JR decision, see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].

4.  In compliance with the directions made by the Registrar of Civil Appeals on 9 January 2023, the applicant lodged his written submissions on 17 January 2023.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 14 September 2015 and surrendered to the Immigration Department on arrival. The applicant submitted a non-refoulement claim by way of written representation on 18 September 2015 alleging that, if refouled, he would be harmed or even killed by his enemies who were connected with Pakistan Muslim League (Nawaz) (“PMLN”), due to his political affiliation with Pakistan Tehreek-e-Insaf (“PTI”). The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2022] HKCFI 2681).

7.  By a Notice of Decision dated 10 October 2017, the Director of Immigration (“the Director”) decided against the applicant’s claims. The Director’s decision covered BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The applicant attended an oral hearing on 19 December 2019 and by its decision dated 22 May 2020, the Board dismissed the applicant’s the appeal. For the reasons set out at [35] – [44], the Board found his evidence as to the number of incidents of violence affecting him was inconsistent, and it did not accept the credibility of the applicant’s claimed fear of harm by people from PMLN. It found that he failed to provide a coherent or credible explanation why he would be harmed upon his return to Pakistan as his party PTI now controls the National Assembly and the Punjab Provincial Assembly. Relevant country of origin information (“COI”) suggested that the balance of power between PTI and PMLN had changed greatly since the 2018 election and PTI now governs Pakistan. For these reasons the Board found that the applicant does not face a real risk of serious harm at the hands of PMLN members should he return to Pakistan. For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 14 February 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s decision “dated 31 December 2018”. In his supporting affirmation, he stated that he sought to judicially review the Board’s decision “dated 31.12.2018”. As mentioned in [3] of the JR Decision, there were no such decisions of either the Director or the Board. Accordingly, when the matter came before the Judge, the applicant was given leave to amend his Form 86 to refer to the Board’s decision dated 22 May 2020.

The JR Decision

10.  The applicant did not provide any ground for relief in the Form 86.

11.  After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons and conclusion set out in [11] - [13] of the JR Decision:

“11. There were no grounds of review. The applicant seeks a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness and simply states that the decision was unreasonable. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12. Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable[5].

13. In my judgment, this application is completely without merit. There is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.”

Application for extension of time to appeal the JR Decision

12.  As mentioned earlier, the applicant failed to file a notice of appeal within time. He filed a summons in the Court of First Instance on 4 November 2022 for an extension of time to appeal. That was dismissed by the Judge on 12 December 2022. Hence, the Summons to this court.

Discussion

13.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

14.  As for (1), the applicant was late by more than 7 weeks between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance. His delay was substantial.

15.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he did not receive the order of 12 December 2022. However, the relevant period starts from the JR Decision i.e. 29 August 2022. The court file shows that the JR Decision was sent to the applicant’s last reported address (which is the same as that provided by the applicant in his summons dated 1 November 2022) but it was returned as undeliverable mail. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner[6]. The applicant has failed to do so. The consequences of any delay arising from such failure falls upon the litigant[7]. Accordingly, there is no good reason for the delay.

16.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the JR Decision either in his summons or in his affirmation.

17.  In his written submissions, he claimed the decision disposed of his torture claim and made him liable to be removed, which entailed significant implications for his substantial right not to be subjected to torture and his right to non-refoulement protection. He quoted cases contending that high standards of fairness are required in the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing his credibility. Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is concerned with the late filing of a notice of appeal to the Board. However, he did not explain or elaborate on how the aforesaid cases and legal provisions were relevant to his case.

18.  It is clear from the Board’s decision that the Board did not accept the credibility of the applicant’s claimed fear of harm by people from PMLN and that he would be harmed upon his return to Pakistan. COI suggested that PTI has governed Pakistan since the 2018 election and therefore the applicant does not face a real risk of serious harm at the hands of PMLN members should he return to Pakistan. As such, the applicant failed to establish his non-refoulement claim on all applicable grounds. These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds. We see none in this case.

19.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and had rightly dismissed the leave application. We find nothing amiss in the JR Decision.

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 9 January 2023.