RE ARSHAD MUHAMMAD

CAMP 169/2021

[2022] HKCA 401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 169 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 181 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 5 August 2020, DHCJ K.W. Lung (“the Judge”) refused to give the applicant leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“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.  Excluding the summer vacation (1 – 31 August) as specified in Order 3 rule 3, Rules of High Court (Cap.4A), the deadline for filing the Notice of Appeal expired on 14 September 2020. 

3.  However, the applicant took out a summons in CFI on 21 August 2020 for an extension of time to appeal.  The application was unnecessary as the time for filing his appeal had not yet expired.  In the event, on 16 September 2020 DHCJ Bruno Chan granted him a 14-day extension to file his appeal. 

4.  However, the applicant failed to file his appeal within the extended time limit.  By a summons dated 28 October 2020, he applied for another extension of time to file his appeal against the JR Decision.  This summons was dismissed by the Judge on 20 April 2021. 

5.  On 18 May 2021, the applicant filed his summons in CAMP 169/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

6.  Pursuant to the directions made by the Registrar of Civil Appeals on 17 June 2021, the applicant should lodge his written submissions on or before 2 July 2021.  He failed to do so.  The Registrar further directed that in the event the applicant fails to lodge his written submissions, he shall be deemed to have abandoned his right to rely on written submissions, and the application will be disposed of on paper on available materials.

7.  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

8.  The applicant is a Pakistani national.  He came to Hong Kong illegally on 13 November 2009 and was arrested by police on the same day.  On 16 November 2009, he lodged his non‑refoulement claim alleging that if refouled, he would be harmed or killed by people in the Pakistan People’s Party (“PPP”) because of his past involvement as a leader in the Pakistan Muslim League Kauf Party (“PMLQ”) in his village.  The factual background of this case was succinctly summarised by the Judge at [6] of the JR Decision ([2020] HKCFI 1853).

9.  By a Notice of Decision dated 20 October 2015 and Notice of Further Decision dated 12 May 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

10.  The applicant appealed the Director’s decisions to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 17 January 2018.  By its decision dated 28 December 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [21] to [69], the Board found that the applicant was not a credible witness and that his evidence was inconsistent, implausible and lacking in details in the material facts of his claim.  The Board found that even if he had been involved in a fighting incident between PMLQ and PPP, he was not a particular target of attack.  The Board further found that his alleged injuries had not attained the minimum level of severity.  (Pausing there, the applicant alleged that he had been shot 3-4 times in the back.  It is therefore surprising that the Board considered that these alleged injuries had not attained the minimum level of severity, but in any event there was no documentary medical evidence to corroborate these allegations of gunshot wounds).  Further, as the applicant had left Pakistan since 2009, there was no evidence to suggest that the PPP members would still be interested in looking for him, and there was no evidence to suggest the applicant would face any risk of harm if refouled.  The Board further found that reasonable state protection would be available in any event. For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds. 

Application for leave to start judicial review

11.  On 18 January 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions.  In his supporting affirmation, he said that the decisions were unreasonable and they had failed to consider all the matters raised by him. 

The JR Decision

12.  The applicant attended an oral hearing on 16 July 2020.  At the hearing, the Judge, pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (Cap.4A), ordered that the Form 86 be amended by deleting the Director as the proposed respondent.   After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [15] - [19] of the JR Decision:

“15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  The applicant has not set out the evidence or any particulars in support of his complaint.  He only complained that the Board did not believe his evidence.

17.  InRe: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Application for extension of time to appeal the JR Decision

13.  As mentioned earlier, the applicant failed to file a notice of appeal against the JR Decision pursuant to the order made by DHCJ Bruno Chan dated 16 September 2020.  He filed a summons in the Court of First Instance on 28 October 2020 for an extension of time to appeal.  His application was dismissed by the Judge on 20 April 2021.  Hence, the Summons to this court. 

Discussion

14.  In considering whether to extend time for appealing, 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).  As for (1), the applicant was late by 1 month between the deadline imposed by DHCJ Bruno Chan and the summons filed in the Court of First Instance on 28 October 2020. His delay was quite substantial. 

15.  As for (2), the reasons for the delay, the applicant explained to the Judge at the hearing that he was late because he had to borrow money from his friend to pay the filing fee for the notice of appeal.  Without any supporting evidence, we are not satisfied that the applicant has provided a good reason for his quite substantial delay.

16.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant’s grounds of review were duly considered by the Judge.  In his application for extension of time before the Judge, he did not raise any proper ground of appeal against the JR Decision.  It is plainly right for the Judge to conclude that there is no realistic prospect of success in the intended appeal and to refuse leave.

17.  In his summons before this Court, he advanced the following:

“1- The decisions are unlawful.

2 - The Decisions failed to take into account many things and assues (sic).

3 - I still have life danger in my home Country.”

18.  In his supporting affirmation, he stated that he sought to appeal against the Judge’s decisions, the Director’s and the Board’s decisions as they were unlawful and failed to take into account the dangers he might have to face if refouled.

19.  The applicant failed to pinpoint any error of law or to raise any discernible ground to reverse the JR Decision. We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and 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 18 May 2021.