RE YASIR MUHAMMAD

CAMP 166/2022

[2023] HKCA 430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 166 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2322 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

1.  On 17 October 2022, this Court handed down decision ([2022] HKCA 1533)  dismissing the applicant’s application to extend time to appeal against the order of Deputy High Court Judge Bruno Chan given on 12 November 2021 refusing her application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 1 November 2022, the applicant filed a notice of motion applying for leave to appeal this Court’s decision to the Court of Final Appeal.  The applicant has also lodged a written submission on 15 November 2022.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our decision.  We will not repeat them.

5.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (Cap. 484)  provides that leave to appeal to the Court of Final Appeal may be granted 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.

6.  The grounds of appeal stated in the notice of motion include that the applicant relied on his friends and NGOs but he did not get any translation from them.  He stated that he was late when appealing in the Court of First Instance because of lack of knowledge.  He stated that his story was genuine.  He stated that the Court was not fair.  He stated that the political party from his home country was too powerful.

7.  In the applicant’s written submission, he stated general non - refoulement legal principle and statutory authority without specifying how they relate to the particulars of his case.  He then stated that he did not provide proof at the hearing before the Board because he was in prison.  He stated that there was political pressure in his home country.  He stated that the army is in control in his country.  He stated that the situation is corrupt.

8.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

9.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, we, accordingly, dismiss the notice of motion.

Applicant, unrepresented, acting in person

CAMP 166/2022

[2022] HKCA 1535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 166 OF 2022

ON AN INTENDED APPEAL FROM HCAL NO. 2322 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I.  Renewed application for extension of time to appeal

1.  On 23 October 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decisions of the Torture Claims Appeal Board (‘the Board’) dated 15 October 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 5 March 2018 rejecting his claim for non‑refoulement protection and also the said decision of the Director.

2.  Upon a hearing held on 26 October 2021, Deputy High Court Judge Bruno Chan refused to grant leave to the applicant for judicial review in his decision on 12 November 2021.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time (for five days), the applicant took out an application on 1 December 2021 before the Judge requesting an extension of time to appeal.  A hearing was held on 27 April 2022.  The Judge subsequently rejected the applicant’s application on 12 May 2022.

4.  Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 25 May 2022 (late for almost one week), the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual background

6.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 4 May 2016 and surrendered to the Immigration Department on 11 May 2016.  He subsequently raised a non-refoulement claim on the basis that he would be harmed or killed by a political party in Pakistan known as the Pakistan Muslim League as he supported its rival party, namely, Pakistan Tehreek‑e‑Insaf.

7.  The details of the applicant’s claim have been summarized by the Judge at [1] to [5] of the CALL‑1 Form.

III.  The Director’s Decision

8.  The Director decided against the applicant’s non‑refoulement claim on 5 March 2018.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board.  An oral hearing was held on 30 August 2018.  While the Board accepted the applicant had been attacked by members of the opposing political party, it was of the view that the applicant was not a witness of the truth.  The Board found that the applicant embellished his evidence and more importantly, it did not accept that those who attacked the applicant continues to pursue him currently.  Therefore, the Board assessed the level of risk of harm upon his return to Pakistan to be low, this is in addition to the fact that the applicant did not have any official position within the Pakistan Tehreek‑e‑Insaf. The Board also found that there was no official involvement, that police and state protection would be available, that internal relocation alternatives would be available in Pakistan and it would not be impossible for the applicant to relocate.

V.  Decisions of the Judge

10.  On 26 October 2021, a hearing was held before the Judge upon the filing of the applicant’s Form 86. In his decision dated 12 November 2021, the Judge had considered the grounds for the applicant’s intended challenge against the Director and the Board.  The Judge was of the view that they were broad and vague assertions which were not reasonably arguable.  In any event, he did not find any errors of law, procedural unfairness, unreasonableness or irrationality in the Board’s decision.  The Judge found that the applicant failed to show any reasonable prospect of success in the intended judicial review.  

11.  In his decision dated 12 May 2022, the Judge held that there was no satisfactory explanation to justify the delay on the applicant’s part and in any event, the Judge found there was no merit for the intended appeal.

VI.  Legal principles

12.  In considering whether to extend time for appeal, the Court will have regard to :

1)  length of the delay;

2)  reasons for the delay;

3)  prospect of the intended appeal; and

4)  prejudice to the putative respondent if extension of time was granted.

VII.  Analysis

1)  Length of delay and reasons for the delay

13.  The applicant was late for five days when he filed his application for extension of time to appeal.  We concur with the Judge’s view that given the relatively insignificant delay, we shall focus on the merits of the applicant’s case.

2)   Prospect of the intended appeal

14.  In the applicant’s summons and supporting affirmation, he alleges that he was unaware of court rules and made other various complaints against the authorities. These bare assertions are not proper grounds of appeal.  As for his written submissions filed on 7 June 2022, the applicant referred to general principles of law regarding non‑refoulement claims without any particulars, specifics or elaborations as to their relevance.     

15.  In our view, the applicant does not have any prospect of success in his intended appeal.  The Judge had considered all the relevant matters including the merits of his case when he refused to grant leave for judicial review and dismissed his application.

16.  Since the applicant has not identified any error of law or procedural unfairness in the Judge’s Decision of 12 November 2021, the intended appeal cannot have any prospect of success.

VIII.  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 25 May 2022.