Case Detail

MAHMOOD WAJID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Related cases with same parties

CACV100/2026SINGH NARINDER PAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV10/2022ROBILLOS ADOLFO DE LA CRUZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV103/2021LUU THI VAN v. TORTURE CLAIMS APPEAL BOARD /NON REFOULEMENT CLAIMS PETITION OFFICE
CACV103/2023ALMAS KHAWAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV103/2025COLLINS OBI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV104/2019DHALI JONY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV104/2023VU THI NGOC MY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV105/2021DINH THI VAN 對 TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE
CACV107/2023NGUYEN THI THUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV107/2025AHMAD AQEEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV1081/2025HOANG VAN BINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV110/2021AYUB MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV11/2023RUPASINGHA ARACHCHIGE SHIROMA THARANGANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV112/2025NONG THI HA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV113/2022SITI MULDIYATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV1151/2025ARSHDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV115/2022GALLEGO VALDES AUGUSTO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV115/2024QUIRANTE JACKIELON DE GUZMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV115/2025DINH KHAC KIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV1153/2025MEGA PUSPITA SARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Files (2)

[2021] HKCA 1063-EN-2021-07-30

MAHMOOD WAJID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HTML content

CAMP 86/2020

[2021] HKCA 1063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 86 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1778 OF 2018)

________________________

BETWEEN
	Mahmood Wajid	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Cheung JA in Court

Date of Judgment: 30 July 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Cheung JA) handed down on 28 January 2021 ([2021] HKCA 71). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 20 June 2019 ([2019] HKCFI 1565) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 1 June 2021 that the applicant should lodge written submissions in support of his Notice of Motion on or before 11 June 2021 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction. The applicant did not lodge any written submission as directed. As the time for compliance with the said directions has expired, and, having considered the papers, we consider it appropriate to determine this application on paper.

3. The applicant is a national of Pakistan. He first arrived in Hong Kong illegally on 5 March 2016 and raised a non-refoulement claim on 7 March 2016 on the basis that he would be harmed by his enemies and their people because of a private dispute and that he feared being arrested by the police in Pakistan.

4. He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late by about three months, excluding the month of August for the court’s summer vacation. It was refused by the judge on 26 June 2020.

5. The applicant renewed his application to the Court of Appeal on 7 July 2020. The application was dismissed by the Court of Appeal on 28 January 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6. The applicant stated his grounds of appeal in the Notice of Motion filed on 28 May 2021 which may be summarized as follows:

(1) The applicant did not know that failure to lodge a skeleton submission would cost him an oral hearing which he specifically requested for. He relied too much on friends and NGO to help him out because he did not have any knowledge about the judicial review system of Hong Kong and did not get any translation from friends and NGO;
(2) Judges were procedurally unfair in the decision. The applicant requested for legal aid but it was refused;
(3) The judges mentioned that they were unable to find error in the decisions of the Director and the Board notwithstanding that the applicant did not show any inconsistencies in the hearing and gave proof to the Director and the Board but they still gave decisions against him;
(4) The judges were unfair as they only saw information from the media but in reality it is impossible to relocate or ask for help from the government. The security system in his country is worse than before.

Analysis and disposition

7. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. The Court of Appeal may extend the time for making the application under section 24(5).

8. Good grounds have to be shown by the applicant for the court to grant him an extension of time. The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9. Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10. The applicant was late for three months in filing his Notice of Motion. He explained in his affirmation that he did not receive any letter but only learned about the rejection of his case from an officer. Both the notice of handing down the judgment and the judgment of the Court of Appeal were sent to the applicant’s address by post in January 2021 but were returned to the court by the post office. It is noted that the applicant’s address stated in his present application is different from the address he stated in his notice of appeal but he has not filed a notice of change of address informing the court of his change of address. Therefore, his explanation cannot justify his substantial delay in filing the Notice of Motion. 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. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran[2018] HKCA 439, at §15).

11. In any event, the applicant’s grounds are either contrary to the facts or not supported by any evidence. He contended that he did not know the failure to lodge skeleton submissions would cost him an oral hearing which he specifically requested for. In fact, he had attended the hearing for his application for leave to bring judicial review before the judge at the Court of First Instance on 6 March 2019. The applicant also alleged that he showed no inconsistencies at the hearings before the Director and the Board but he was in fact absent from the hearing before the Board. The Director held that there is nothing to show that the applicant had suffered any serious harm at the hands of his enemies or that the private dispute between the applicant and his enemies had involved any government officials. The Board found that the documents submitted by the applicant are largely inconsistent with his claim. He has failed to adduce any evidence to refute the findings of the Director and the Board.

12. Furthermore, the applicant failed to provide any arguable basis to show that there is any procedural unfairness in the decisions of the Court of First Instance or the Court of Appeal. In particular, he has not provided any credible evidence to support his claim or submissions.

13. He has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

14. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 28 May 2021.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

CAMP 86/2020

[2021] HKCA 71

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 86 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1778 OF 2018)

________________________

BETWEEN
	Mahmood Wajid	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Cheung JA in Court

Date of Judgment: 28 January 2021

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1. On 20 June 2019, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim^{^[1]}.

2. The applicant filed a summons on 7 November 2019 seeking extension of time to appeal against that decision, as the 14-day period to file his appeal expired on 4 July 2019. A hearing of the application was conducted on 9 January 2020. On 26 June 2020, the judge handed down his decision refusing to grant extension of time to the applicant as the applicant was unable to show that he has a reasonable prospect of success in his intended appeal^{^[2]}.

3. On 7 July 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge's decision of 20 June 2019.

4. The applicant is a national of Pakistan. He is 30 years old. He first arrived in Hong Kong illegally on 5 March 2016. He raised a non-refoulement claim on 7 March 2016 on the basis that he would be harmed by his enemies, Munir, Sheeraz, Shaban and Tabir and their people because of a private dispute and that he feared being arrested by the police in Pakistan.

The Director’s decision

5. By a Notice of Decision dated 31 July 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 2 risk^{^[3]}, BOR 3 risk^{^[4]}, torture risk^{^[5]} and persecution risk^{^[6]}.

The Board’s decision

6. The applicant appealed against the Director’s decision to the Board. The hearing of the appeal before the Board was scheduled at 2:30 p m on 22 June 2018. After waiting for the applicant for more than half an hour, the Board was satisfied that the applicant had failed to attend the hearing and decided to consider the appeal on the papers.

7. The Board found the applicant's evidence unreliable as there were significant inconsistencies in the evidence and the documents submitted by the applicant did not support his claim. The Board also considered the fact that the applicant would face serious criminal charges in Pakistan would not be sufficient to protect him from refoulement. The Board decided that there was no credible evidence to show a genuine risk of harm to the applicant in his home country and dismissed his appeal on 30 July 2018.

The intended judicial review

8. The applicant filed a Form 86 and an affirmation on 29 August 2018 to seek leave to apply for judicial review against the decision the Board. He put forward the following grounds for judicial review:

(1) the applicant was not legally represented before the Board, which was in breach of procedural fairness;
(2) the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;
(3) the documents in the hearing bundle are in English and he was unable to obtain interpreter service;
(4) he was confused at the appeal hearing;
(5) the Board had relied upon hearsay information, source of news which is not officially recognized and outdated materials in relation to the country of origin information;
(6) there was no screening for him for BOR 2 risk.

The judge’s decision

9. A hearing was conducted before DHCJ K W Lung on 6 March 2019. The judge rejected ground (1) as an applicant does not have an absolute right to free legal representation at all stages of the proceedings: Re Ahmed Syed Rafiq[2018] HKCA 178 at §22 and he had already had the benefit of legal representation at the screening stage. Grounds (2) to (4) failed as the applicant admitted to the judge at the hearing that a friend had explained the hearing bundle to him and he did not even attend the appeal hearing before the Board. The judge rejected ground (5) as it was not supported by any evidence. Ground (6) was rejected as the BOR 2 risk had been assessed by the Director in the enhanced screening mechanism.

10. The judge found that the applicant does not have a reasonable prospect of success in his intended judicial review and dismissed the application on 20 June 2019.

11. As mentioned earlier, the applicant’s application for extension of time to appeal against the judge’s decision of 20 June 2019 was rejected by the judge on 26 June 2020 and he renewed his application to the Court of Appeal by the present summons issued on 7 July 2020 with a supporting affirmation.

Grounds of intended appeal

12. The applicant stated his intended grounds of appeal in the summons and supporting affirmation as follows:

(1) the Board's decision was unfair as it did not give him a hearing when he was late. The applicant was in the hospital on the hearing date as he felt unwell;
(2) the judge was unfair as the applicant did not receive any letter from the court informing him of the hearing date;
(3) the judge was unfair in assessing the documents.

13. The Registrar of Civil Appeals made an order on 29 September 2020 requiring the applicant to lodge written submissions by 4 p m on 24 October 2020, failing which he shall be debarred from lodging any written submissions and be deemed to rely on only the representations made in the summons of 7 July 2020 and his supporting affirmation. As the applicant has failed to lodge any written submissions as directed, he is thereby debarred from lodging any written submissions and is deemed to be relying only on the representations in the summons and supporting affirmation in the present application.

Analysis and disposition

14. In considering whether to extend time for appealing against a decision refusing 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 success of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 20 June 2019. The applicant took out a summons at the court below on 7 November 2019. He was late by about three months, excluding the month of August for the court’s summer vacation. The delay is substantial.

16. The applicant did not provide any reason which can justify the delay. In these circumstances, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

17. In assessing the merit of the intended appeal, the court 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.

18. 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, 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.

19. The applicant's contention that the Board was unfair for not giving him a hearing is unmeritorious. He explained in the present summons and at the hearing before the judge that he was in the hospital on the hearing date. This is contrary to the explanation he gave in his letter sent to the Board on 22 June 2018, in which he stated that he went to submit a document regarding his room (ie for the application of accommodation with the International Social Service) before the hearing. In any event, when he was given the opportunity to make oral submissions at the hearing before the judge, he failed to give evidence to impugn the Board's findings or explain the inconsistencies as identified by the Board in rejecting his evidence. The applicant lost the opportunity of an oral hearing before the Board because of his own fault and he failed to demonstrate any real prejudice he has suffered as a result.

20. The applicant contended that he did not receive any letter from the court informing him of the hearing date but he actually did attend both hearings before the judge on 6 March 2019 and 9 January 2020. His ground pertaining to unfairness of the judge in the assessment of his documents is lacking in particulars, elaboration or evidence in support.

21. For the above reasons, the applicant does not have any prospect of success in the intended appeal. We refuse to grant an extension of time to appeal and dismiss his summons filed on 7 July 2020.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

[1][2019] HKCFI 1565

[2][2020] HKCFI 1268

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.