RE KHALIL SIKANDER

CAMP 507/2022

[2023] HKCA 55

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 507 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 776 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  dated 23 November 2021[1] refusing the applicant leave to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 16 April 2020.  In that decision, the Board refused to allow the applicant to file a late appeal against the decision of the Director of Immigration (“Director”)  dated 3 July 2017 rejecting his non-refoulement claim in relation to BOR 2 risk.[2]

2.  On 25 November 2022, the Judge refused to extend time for the applicant to appeal against his decision.[3]

Background

3.  The applicant is a national of Pakistan, born in 1992.  Having entered Hong Kong illegally, he was arrested by the police on 18 February 2013.  He raised a torture claim on 21 February 2013 and completed a non-refoulement claim form on 29 June 2015.

4.  The applicant’s claim was assessed by the Director with reference to BOR 3 risk,[4] persecution risk,[5] and torture risk.[6]  By notice of decision dated 7 September 2015, the Director rejected the applicant’s claim.

5.  The applicant appealed to the Board against that decision of the Director.  Following a hearing of the appeal, in its decision dated 22 May 2017, the Board dismissed the appeal and affirmed the decision of the Director.

6.  The applicant was subsequently invited to submit additional information for the purpose of considering his claim with reference to BOR 2 risk, but he did not submit any further information. By notice of further decision dated 3 July 2017, the Director rejected the applicant’s non-refoulement claim with respect to BOR 2 risk.

7.  The applicant filed a notice of appeal against that decision of the director on 10 August 2017, which was out of time by 24 days.  The Board, as required by section 37ZT of the Immigration Ordinance (Cap 115), dealt with the question, as a preliminary issue without a hearing, as to whether the applicant should be allowed to file the late appeal.  The Board, having considered the explanation put forward by the applicant and the merits of his claim, decided in its written decision dated 16 April 2020 to reject the late filing.

The Judge’s decisions in the court below

8.  On 27 April 2020, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision dated 16 April 2020.  The applicant did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.

9.  Before his application was considered, however, the applicant filed an affirmation on 20 October 2021 stating: “Affirmation for close my judicial review as I want clear all my claim – specially illegal entry.  I married and I applied for depended visa.” [sic]

10.  Accordingly, based on consideration of the documents alone, on 23 November 2021 the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out at [3] – [6] of the Form CALL-1 as follows:

“ 3. By affirmation filed on 20 October 2021, the applicant applied to the Court to close his application, saying that he has married and applied for dependant visa.

4. 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. As the applicant has no problem in his country, the Court should refuse to grant him the remedy and the applicant’s application should be dismissed.

   6.  The application is therefore dismissed.”

11.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), but only took out a summons almost 11 months later on 14 October 2022 to seek an extension of time to appeal against the decision of the Judge. The applicant did not provide any reason or argument in support of his application.

12.  The Judge dealt with that application on paper.  In his written decision dated 25 November 2022, the Judge dismissed the application on the basis that given that the applicant had himself asked to withdraw his application, there was nothing for him to appeal against.

The renewed application before this Court

13.  By summons filed on 2 December 2022, the applicant seeks an extension of time from this court for him to appeal against the Judge’s decision refusing leave to apply for judicial review.  In the summons, the applicant simply stated that he failed to appeal as he did not get the High Court’s letter on time.

14.  The applicant lodged written submissions on 14 December 2022 in which he said that his enemy wanted to kill him, that he was unable to provide suitable documents because he could not bring them when he left his country, and that there were many errors of process in the Board (but he did not specify them).

15.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

16.  Pursuant to Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3)  the intended appeal’s prospect of success; and (4)  the prejudice to the respondent if an extension of time were granted.

17.  The applicant only took steps to appeal almost 11 months after the Judge’s decision.  We do not find there to be a satisfactory and valid explanation for the delay.  Leaving aside the reasons for the delay, we are satisfied that extension of time should be refused because of lack of merits in the intended appeal.  In the present case, the applicant filed an affirmation on 20 October 2021 to “close” his application for judicial review.  This was duly granted by the Judge by dismissing the application.  The applicant has not given any explanation whatsoever why the Judge was wrong to give effect to the applicant’s own request by dismissing the application, or, if the applicant had changed his mind, why he had done so and why he should be allowed to reinstate his application.

18.  Further, judicial review is not another avenue of appeal.  In this case, the Board, for the reasons it gave in its written decision, rejected the applicant’s late appeal against the Director’s decision relating to BOR 2 risk.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural defect resulting in unfairness, and irrationality in the ultimate decision.  The applicant has wholly failed to advance any such public law grounds; nor can we see any from the materials before us.

19.  We do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The applicant’s summons is accordingly dismissed.