RE MAHMOOD TARIQ

CAMP 264/2022, [2025] HKCA 221

On Appeal From [2022] HKCFI 790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 264 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2112 OF 2018)

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DECISION

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

1.  On 28 April 2023, this Court handed down the decision ([2023] HKCA 606) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge P. Li given on 30 March 2022 refusing his application for extension of time for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 15 November 2024, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The affirmation consists of 12 pages of enclosures of which 5 pages are the applicant’s ‘affirmation letter’ and the remaining 7 pages are photocopies of previous court documents.  The applicant has not lodged any written submission.

3.  Having considered the applicant’s notice of motion and affirmation, 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 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that 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 extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by almost 1.5 years.  The applicant simply stated at page 4 of his enclosure to his affirmation that he ‘did not get any letter form the High Court’.  This is a bare allegation unsupported by evidence nor explanation and elaboration.

7.  As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO 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.

8.  The notice of motion simply stated matters such as the applicant did not get letter on time, or that he was not satisfied with the High Court decision, without explanations.

9.  The 5 page ‘affirmation letter’ by the applicant described factual matters (pages 1 to 2), the current ruling political party in Pakistan (pages 2 to 3), recent attacks happening in Pakistan (pages 3 to 4) and the lack of justice (pages 4 to 5).

10.  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.

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

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

CAMP 264/2022, [2023] HKCA 606

On Appeal From [2022] HKCFI 790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 264 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2112 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.  Factual background

1.  On 30 March 2022, Deputy High Court Judge P. Li refused the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) concerning his non‑refoulement protection claim. 

2.  On 12 July 2022, the applicant’s application for extension of time to appeal against the said decision was dismissed by DHCJ To as there is no reasonable prospect of success in the intended appeal.

3.  On 21 July 2022, the applicant filed the present summons with the Court of Appeal seeking to extend time for appeal against the decision refusing leave to apply for judicial review.

4.  This summons is to be treated as a renewed application for leave to appeal out of time against the decision dated 2 August 2018: See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragraph 3 to 8.

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, 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.

6.  The applicant is a national of Pakistan.  He is 40 years old.  He entered Hong Kong illegally on 1 January 2016 and was arrested by the police on the same date.  He launched a non-refoulement claim on 3 January 2016.  He was released on recognizance on 24 January 2016.  The applicant claims that he would face harm if returned to Pakistan, due to his support of the Pakistan Tehreek-e-insaf (PTI) from a man named Mohammad Ijaz Bajwa (‘Ijaz’) and his subordinates, namely Mohammad Ilyas (‘Ilyas’) and Saeed Ahmed (‘Saeed’) who were all supporters of the Pakistan Muslim League (Nawaz) (PML(N)) in his village.  It appeared that Ijaz and his subordinates wanted to extort money and forced him to work for them, and the applicant had been attached several times by Ijaz and his men.

7.  The applicant stayed away from his home village for a period of time after having been assaulted in mid‑2013, but returned subsequently.  He then moved to another city and worked there without any problems.  Eventually he paid an agent who arranged for him to leave Pakistan for Guangzhou, and then another agent who arranged him to sneak into Hong Kong by boat.

II.  The Director’s decisions

8.  By a Notice of Decision dated 24 October 2017, the Director rejected the applicant’s claim on, torture risk, BOR 2 risk, BOR 3 risk, and persecution risk. 

9.  On 1 November 2017, the applicant appealed against the Director’s decisions to the Board.  An oral hearing was conducted on 27 February 2018.  The Board did not find that the applicant’s claims regarding his support for the PTI nor the problems he alleged had from Ijaz, Ilyas, Saeed or other PML(N) supporters as credible.   On this basis, it held that none of the applicable grounds for the applicant’s claims for non-refoulement protection had been made out.  The Board dismissed the appeal on 3 August 2018.

III.  Theintendedjudicial review

10.  The applicant filed a Form 86 and an affirmation on 3 October 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  His affirmation did not specify any grounds.

IV.  TheJudge’s decision

11.  The Judge was of the view that the applicant had failed to point out any error in the TCAB decision.  The applicant had been given ample opportunities to explain, yet his explanations were unacceptable.  The applicant was held to have failed to establish that there was a real risk of harm, and that he was not credible.  The Judge opined that the TCAB decision was reasonable, and there was no error in law or procedure.  Given that the case is not reasonably arguable, leave for judicial review was thus refused, and the application was dismissed on 30 March 2022.

V.   Grounds of intended appeal

12.  The applicant did not provide any grounds in his affirmation for this appeal, he only expressed the fact that he did not agree with the decisions.

13.  His written submissions repeated the same account of his alleged encounters in Pakistan, and expressed his disagreement with the decisions.

VI.  Analysis

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 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 30 March 2022.  The applicant took out a summons for leave to appeal out of time at the court below on 11 May 2022.  He was late by 28 days.

16.  The applicant claimed that the reason for his delay is that he did not receive the decision below.  According to the Court record, the decision below was sent by post to the address provided by him.  The mail was not returned.  The applicant’s explanation for his delay cannot be considered as justifiable as it is established that the litigant has the duty 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]). 

17.  Moreover, even if the Court is minded to accept any explanation in view of his delay in the present case, 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.

18.  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]. 

19.  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.  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.

20.  In the present application, the applicant has not put forward any ground to reverse the Judge’s decision.  The applicant failed to show that he has any reasonable prospect of success in his intended appeal, and he has not adduced any evidence to refute the Board’s findings as to his credibility.  For the above reasons, there is no prospect of success in his intended appeal, the summons filed on 21 July 2022 is dismissed.