Case Detail

CAMP 17 /2021

[2022] HKCA 437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 17 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 177 OF 2018)

________________________

BETWEEN
	Ilyas Rehman	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	1^st Putative Respondent
	Immigration Department	2^nd Putative Respondent

________________________

Before:

Hon Kwan VP and Au JA in Court

Date of Written Submission:	2 November 2021
Date of Judgment:	30 March 2022

________________________

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 out of time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Au JA) handed down on 6 September 2021 ([2021] HKCA 1257). The Court of Appeal refused to grant extension of time for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan dated 3 June 2020 ([2020] HKCFI 998) refusing to grant leave to apply for judicial review concerning the applicant’s non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 19 October 2021 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 2 November 2021. Having read his written submissions and the papers, we consider it appropriate to determine this application on paper.

3. The applicant is a national of Pakistan. He arrived in Hong Kong on 27 May 2016 as a visitor and subsequently overstayed. He was arrested by the police on 5 August 2016 and lodged his non-refoulement claim on 7 August 2016. His claim was made on the basis that he will be harmed or killed by his brother and his brothers-in-law over some family disputes if he returns to Pakistan.

4. He took out a summons for extension of time to appeal against the decision of the judge at the court below on 11 August 2020. His application was dismissed by the judge on 8 December 2020 ^{^[1]}.

5. The applicant renewed his application to the Court of Appeal on 13 January 2021. The application was dismissed by the Court of Appeal on 6 September 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6. The applicant did not put forward any grounds of appeal in his Notice of Motion. In his written submissions, he only reiterated the problems he faced in Pakistan without giving specific grounds against the judgment.

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. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

8. Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether 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 more than two weeks in filing his Notice of Motion. No explanation was provided for the delay. Thus, there is no good ground for the court to grant extension of time for him to seek leave to appeal in the present application.

11. In any event, the applicant has not demonstrated that the Court of Appeal was wrong in dismissing his application. Furthermore, 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).

12. We therefore dismiss the Notice of Motion filed on 19 October 2021.

(Susan Kwan)
Vice President

(Thomas Au)
Justice of Appeal

The Applicant, acting in person

[1][2020] HKCFI 2971

CAMP 17 /2021

[2021] HKCA 1257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 17 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 177 OF 2018)

________________________

BETWEEN
	Ilyas Rehman	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	1^st Putative Respondent
	Immigration Department	2^nd Putative Respondent

________________________

Before: Hon Kwan VP and Au JA in Court

Date of Written Submission: 12 April 2021

Date of Judgment: 6 September 2021

________________________

J U D G M E N T

________________________

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

1. On 3 June 2020, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2. On 11 August 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 17 June 2020. The summons was dismissed by the judge on 8 December 2020[2].

3. On 13 January 2021, the applicant filed with the Court of Appeal the present summons seeking to challenge the judge’s refusal of his leave application. As the time for appealing has expired, this summons should be treated as a renewed application for extension of time to appeal against the judge's decision of 3 June 2020.

4. The applicant is a national of Pakistan. He is 44 years old. He arrived in Hong Kong on 27 May 2016 as a visitor and subsequently overstayed. He was arrested by the police on 5 August 2016 and lodged his non-refoulement claim on 7 August 2016. His claim was made on the basis that he will be harmed or killed by his brother and his brothers-in-law over some family disputes if he returns to Pakistan.

The Director’s decision

5. By a Notice of Decision dated 20 January 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

The Board’s decision

6. The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 18 January 2018. The Board did not accept the applicant’s case because of the significant inconsistencies and discrepancies in the applicant’s account of events. The Board further considered there is no future risk of serious harm or death even assuming that the applicant’s factual assertions were true as there is no evidence to show there was any real intent of any actual harm or attempt of harm on the applicant and the applicant had not gone into hiding after receiving the alleged death threats. The Board also found the applicant can relocate to other parts of Pakistan where he will be safe to stay. Therefore, the appeal was dismissed by the Board on 26 January 2018.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 6 February 2018 for leave to apply for judicial review against the decision of the Board. He did not state any grounds for his intended challenge in his Form 86 or affirmation. He only stated the following contentions in his letter to the court:

(1) The applicant had to escape from Pakistan due to political pressure;
(2) The politician and criminal named Khwaja Asif, Minister of Foreign Affairs, has created a lot of nuisance in the city and is a corrupt minister. Although he was suspended from his duties, nothing has changed and he wants to kill the people including the applicant who were whistle blowers of his corruption, criminal and illegal activities.

The judge’s decision

8. The judge considered that the applicant’s assertions in the letter are not supported by any documentary evidence and have no relevance to his claim which was a family dispute with nothing to do with the political situation in Pakistan. The judge found that the applicant failed to show any error in law or procedural unfairness in the Board’s decision, or any reasonably arguable basis to challenge the findings of the Board. Thus, the leave application was dismissed on 3 June 2020.

Grounds of intended appeal

9. In the present application, the applicant stated his grounds of appeal in his written submissions which may be summarized as follows[7]:

(1) The Director’s screening process was wrong. The immigration officer only asked some questions and gave his decision;
(2) The Board did not give the applicant any lawyer and rejected his appeal.

Analysis and disposition

10. 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 the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11. 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 3 June 2020. The applicant took out a summons at the court below on 11 August 2020. He was late by more than six weeks even when the period of the Court’s summer vacation in August 2020 is excluded. The delay is substantial.

12. The applicant explained at the previous hearing at the court below that he changed his address but he only informed the Immigration Department and did not inform the court so he did not receive the court’s decision. In fact, the court sent the decision to both the address the applicant previously provided to the court and his new address provided to the court by the Immigration Department. The mails were not returned to the court. Moreover, 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). Under these circumstances, the applicant’s explanation cannot justify his delay.

13. As the delay is inexcusable, the applicant 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.

14. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

15. The applicant’s grounds against the Director and the Board have not been raised in his leave application. An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[8]. Therefore, the Court of Appeal will not entertain these new grounds.

16. In any event, these grounds are bound to fail. His complaint against the Director is lacking in particulars, elaboration or evidence in support. Moreover, it has been established that an applicant of non‑refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[9].

17. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. In the present application, the applicant failed to put forward any grounds to reverse the judge’s decision.

18. For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to extend time to appeal against the judge’s decision of 3 June 2020 and dismiss the summons filed on 13 January 2021.

(Susan Kwan)
Vice President

(Thomas Au)
Justice of Appeal

The Applicant, acting in person

[1] [2020] HKCFI 998

[2] [2020] HKCFI 2971

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

[4] 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.

[5] 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.

[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.

[7] In his previous application for extension of time, he did not give any particular intended grounds of appeal but only submitted at the hearing that his life would be in danger in his home country: See §6 [2020] HKCFI 2971.

[8] Re Qadir Sher[2018] HKCA 160 at §11

[9] RePaswan Shibu Lal, CACV 284/2017 at §21

ILYAS REHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

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