NAVEED JAN v. THE PETITION TEAMS (SECURITY BUREAU)

CAMP 85/2021

[2022] HKCA 776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 85 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 593 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down 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 Chow JA) handed down on 15 October 2021 ([2021] HKCA 1498). The Court of Appeal dismissed the applicant’s application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan on 4 August 2020 ([2020] HKCFI 1781) refusing to grant extension of time to seek 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 28 December 2021 that the applicant shall lodge written submissions on or before 11 January 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 29 November 2014 and was arrested by the police on 10 December 2014. He raised his non-refoulement claim on 12 December 2014 on the basis that he will be harmed or killed by the Taliban as his family failed to pay them extortion money.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 23 February 2021[1].

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 17 March 2021. The application was dismissed by the Court of Appeal on 15 October 2021 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The grounds of appeal in the Notice of Motion filed on 28 December 2021 may be summarized as follows:

(1)  The applicant did now know the failure to lodge the skeleton submission would cost him an oral hearing which he specifically requested for.

(2)  The judges were procedurally unfair in the decision and the Court of First Instance did not judge fairly.

(3)  The Board and the Director gave their decisions on the basis of other applicant but his case is genuine. He can provide more proof if they asked him to. The Board mentioned that he can relocate to anywhere but it is not possible for him to relocate in Pakistan.

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 40 days late in filing his Notice of Motion. The delay is substantial. He explained in his affirmation he did not know there is a time limit for filing the Notice of Motion. This explanation is not acceptable, considering that the applicant had previously taken out a summons for extension of time to appeal which reflected that he must have been aware there are time limits in respect of certain court procedures. Under these circumstances, the applicant failed to show any good ground for the court to grant an extension of time for him to file the Notice of Motion.

11.  In any event, the applicant’s grounds of appeal are just bare assertions which do not constitute reasonably arguable grounds against the decision of the Court of Appeal. He has not demonstrated that the Court of Appeal was wrong in dismissing his application and 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 refuse to exercise our discretion in his favour and dismiss the Notice of Motion filed on 28 December 2021 for leave to appeal to the Court of Final Appeal out of time.

The Applicant (Appellant), acting in person

CAMP 85/2021

[2021] HKCA 1498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 85 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 593 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1.  On 4 August 2020, Deputy High Court Judge Bruno Chan refused to grant extension of time for the applicant to apply for leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.  On 7 September 2020, the applicant filed a summons for extension of time to appeal against that decision as the 14-day period to file his appeal was thought to have ended on 18 August 2020.  The applicant’s summons was dismissed by DHCJ Bruno Chan on 23 February 2021[2].  

3.  On 17 March 2021, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of the judge dated 4 August 2020.

4.  The applicant is a national of Pakistan.  He is 26 years old.  He entered Hong Kong illegally on 29 November 2014 and was arrested by the police on 10 December 2014.  He raised his non-refoulement claim on 12 December 2014 on the basis that he will be harmed or killed by the Taliban as his family failed to pay them extortion money.

The Director’s decision

5.  By a Notice of Decision dated 9 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 28 December 2017.  The Board considered that the alleged risk of harm is within the realm of speculation and cannot justify international protection by way of non-refoulement as the claimant and his brother were not victimized in any way and the applicant had only been in the presence of Taliban members when he was very young (at most aged 11).  The Board held that there is no reason to believe that the applicant will be identified, targeted, harassed or harmed by the Taliban upon his return to Pakistan.  Therefore, the appeal was dismissed by the Board on 5 January 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 10 April 2018 for leave to apply for judicial review against the decision of the Board, after the expiry of the three-month period for applying for leave to bring judicial review.  His did not put forward any specific grounds for his intended challenge but only stated that he was not satisfied with the Board’s decision and reiterated his claim of fear of harm from the Taliban.

The judge’s decision

8.  DHCJ Bruno Chan considered the application on paper as the applicant did not request for an oral hearing.  The judge focused on assessing the merit of the intended judicial review as the delay of five days was not significant.  The judge held that the Board was correct in finding that the applicant failed to show that he would be personally at risk of harm from the Taliban.  He found there is no reasonably arguable basis or merit in the applicant’s intended judicial review against the finding of the Board.  As there is no prospect of success in the intended judicial review, the judge refused to grant extension of time and dismissed the leave application on 4 August 2020.

Grounds of intended appeal

9.  The applicant did not provide any grounds of appeal in his summons or supporting affirmation.

10.  His grounds stated in his written submissions may be summarized as follows:

(1)  High standards of fairness are required on the part of decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved;

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing the credibility of the applicant.

Analysis and disposition

11.  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.

12.  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 applicant took out a summons for extension of time at the court below on 7 September 2020 instead of filing a notice of appeal out of the mistaken belief that the time for appealing had expired at that time. 

13.  Pursuant to Order 3 rule 3 of the Rules of the High Court, the period of the Court’s summer vacation shall be excluded in reckoning any period prescribed by the Rules of the High Court or by any order or direction for serving, filing or amending any pleading.  Hence, the period of the summer vacation in August 2020 shall be excluded in reckoning the 14-day period for the applicant to file his notice of appeal[7].  In other words, the time for appeal ended on 14 September 2020, which had not yet expired by the time the applicant filed his summons with the court below on 7 September 2020. 

14.  However, the time for appeal has expired when the applicant filed his present summons on 17 March 2021.  Even if the court is minded to excuse the applicant’s delay under the aforesaid circumstances, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[8].

15.  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.

16.  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.

17.  The applicant’s grounds in the present application are just bare assertions without particulars or evidence.  In particular, the Board’s refusal of the appeal was not based on any adverse finding on the applicant’s credibility.  The Board found that the applicant failed to show a real risk of harm even according to his own case.  The applicant failed to adduce any evidence to refute the Board’s finding or to provide any particulars to show that the Board had failed to apply high standards of fairness or acted in a procedurally unfair manner.  Furthermore, he also failed to demonstrate that the judge was wrong in refusing to grant extension of time for him to apply for leave to bring judicial review.

18.  For the above reasons, there is no prospect of success in his intended appeal. We decline to grant extension of time to appeal against the judge’s decision of 4 August 2020 and dismiss the summons filed on 17 March 2021.