RE FAROOQ MUHAMMAD

CAMP 139/2022

[2023] HKCA 81

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 139 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2149 OF 2018)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the Judgment of the Court):

1.  On 14 November 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 19 October 2022 (“the Judgment”) ([2022] HKCA 1540). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 7 February 2022, refusing his application for leave to apply for judicial review ([2022] HKCFI 396).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.  In his Notice of Motion, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NONREFOULEMENT CLAIM. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY APPLY FOR LEAVE. I AM NOT SATISFIED. I WANT TO GO TO THE COURT OF FINAL APPEAL.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 28 November 2022.  In those submissions, he repeated the factual basis and procedural history of his non-refoulement claim.  He claimed that he did not get justice and that no one realised that he had a life threat.  He also asserted that there were many errors which the Court could not find, but failed to specify what those alleged errors were.

6.  In our view, his intended appeal is plainly without substance.  At the outset, the allegations made in his Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence or particulars.  More importantly, he did not identify any specific error in the Judgment with sufficient particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  Accordingly, the applicant’s intended appeal plainly has no merit.

7.  Further and in any event, the applicant’s contentions are fact‑specific and do not relate to any question of great general or public importance.

8.  Accordingly, he has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

9.  For these reasons, the applicant’s intended appeal has no merit. Accordingly, the Notice of Motion is dismissed.

CAMP 139/2022

[2022] HKCA 1540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 139 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2149 OF 2018)

____________________

____________________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the Judgment of the Court):

1.  By a summons filed on 4 May 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 7 February 2022 refusing his application for leave to apply for judicial review ([2022] HKCFI 396) (“the Leave Decision”). By an earlier judgment dated 13 April 2022, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 934) (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 3 August 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 20 September 2017 rejecting his claim for non‑refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Pakistan.  He surrendered to the Immigration Department on 13 January 2016 and claimed that he entered Hong Kong illegally by boat on 17 December 2015.  The applicant made a non-refoulement claim on 20 July 2016 and his non‑refoulement claim was treated as withdrawn on 11 November 2016 upon his request.  Subsequently, by a letter dated 10 January 2017, he requested to reopen his non-refoulement claim on the basis he would face life-threatening danger posed by his creditor’s brother because of his default in loan repayment.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 20 September 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  On 7 May 2018, he attended an oral hearing before the Board.  On 3 August 2018, the Board dismissed his appeal.  Having assessed the evidence, the Board found that the applicant’s claims were not established and that he had fabricated his claims for the purpose of seeking protection.  The Board also found that the applicant was not of interest to the authorities and that internal relocation would be available to him.  Accordingly, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 8 October 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision[5].  No ground of review was stated in his Form 86 and in his supporting affirmation, he only stated that he was afraid to return to his home country as his enemies were still looking for him and wanted to kill him.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [12] ‑ [19] of the Leave Decision:

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

13. In Re: 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.’

14. The Board did not accept his evidence on the facts of his case. Therefore, he has no factual basis in support of his claim.

15. He does not have any valid ground to challenge the Board’s Decision.

16. 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.

17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18. I therefore refuse to grant leave for the applicant to apply for his intended judicial review.

19. Accordingly, I dismiss his application.”

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

10.  On 25 February 2022, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was four days late with his intended appeal.  In his summons and supporting affirmation, he contended that did not receive any letter from the High Court.

11.  By the EOT Decision, the Deputy Judge noted that the applicant was unable to set out any valid ground to challenge the Board’s Decision and did not point out any error in the Leave Decision.  As his intended appeal had no realistic prospect of success, the Deputy Judge refused to grant extension of time and dismissed his application.

The Present Application

12.  By a summons and supporting affirmation both filed on 4 May 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons and supporting affirmation, the applicant again claimed that he did not receive the Leave Decision and failed to appeal on time.  He further claimed in his supporting affirmation that the extension of time to appeal was important for his life’s safety.

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 4 May 2022, the applicant lodged his written submissions on 18 May 2022.  In those submissions, the applicant repeated the alleged factual basis and the procedural history of his non-refoulement claim and further stated that it was his right to appeal.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif[2019] HKCA 299 at [13].

15.  Although a delay of four days is not substantial, the prospect of success of the intended appeal is important and the Court will not grant extension for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike[2019] HKCA 702 at [19] and Re Rahman Wasif[2019] HKCA 299 at [13].

16.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration[2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: ReFarrukh Zaib[2020] HKCA 408 at [28].

17.  The applicant’s appeal is clearly without merit. Nowhere in his summons, supporting affirmation or written submissions did he identify any error in the Leave Decision with specific particulars.  General and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal.  Accordingly, there is no proper ground of appeal and clearly no basis to disturb the Leave Decision.

18.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 4 May 2022 dismissed.