RE ULLAH SIBGATH

CAMP 347/2022, [2024] HKCA 668

On Appeal From [2022] HKCFI 1365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 347 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1094 OF 2019)

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DECISION

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

1.  On 12 June 2023, this Court handed down judgment ([2023] HKCA 733) dismissing the applicant’s application to extend time to appeal the order of Deputy High Court Judge K W Lung given on 7 July 2022 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 19 June 2023, the applicant filed a notice of motion applying for leave to appeal this Court’s judgment to the Court of Final Appeal.

3.  Pursuant to the directions of the Registrar of Civil Appeals also dated 19 June 2023, the applicant was to lodge and serve on or before 3 July 2023 written submissions failing which he will be deemed to have abandoned his right to rely on written submissions and the matter will be considered by this Court based on the available materials. The applicant has not lodged or served written submission by the stipulated deadline.

4.  Having considered the applicant’s notice of motion, 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.

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

6.  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.

7.  The notice of motion stated that :

‘ Dear / Sir / Madam, I would like to request you that, I am going to be apply the Court of Final Appeal. Because there are some error of law, they can not use some laws to treat my non-refoulement claim case that’s why, I am going to be apply my outstanding claim in the Court of Final for right Justification.’

8.  We are of the view that no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

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

11.  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 347/2022, [2023] HKCA 733

On Appeal From [2022] HKCFI 1365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 347 OF 2022

(ON APPEAL FROM HCAL NO. 1094 OF 2019)

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J U D G M E N T

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

I. Renewed application for extension of time to appeal

1.  On 24 April 2019, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 12 April 2019 which dismissed his appeal against the decision of the Director of Immigration (the ‘Director’)  dated 10 May 2018 rejecting his claim for non-refoulement protection.

2.  In his decision of 7 July 2022 (the ‘Decision’), Deputy High Court Judge KW Lung refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the Decision.  Being out of time, the applicant took out an application on 22 July 2022 before the Judge requesting an extension of time to appeal.  The Judge on 30 August 2022 rejected the applicant’s application.

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 14 September 2022 (late for over 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, 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. Background

6.  The applicant is a national of Pakistan.  He entered Hong Kong illegally and was arrested by the police on 16 December 2015.  He then raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a Mr. Mukhtar who was associated with the Pakistan Muslim League Nawaz because he had a land dispute with him and also, he was associated with a rival party Pakistan Tahreek-e-Insaf.

7.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of the Decision.

III. The Director’s Decision

8.  The Director decided against the applicant’s claim on 10 May 2018.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (the ‘Director’s Decision’).

IV. The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 11 February 2019, the Board dismissed the applicant’s appeal on 12 April 2019 (the ‘Board’s Decision’).

10.  The Board found the applicant’s case to be unsubstantiated and refused to accept it.  The Board also rejected the applicant’s mere assertion that he had no protection from the Pakistani government.  The alleged land dispute was only a private matter.  In the absence of state involvement, the Board found state protection and internal relocation to be available to the applicant.  The Board therefore found the applicant’s claim failed on all applicable grounds.

V. Decision of the Judge

11.  The applicant filed a Form 86 and a supporting affirmation on 24 April 2019.  In his affirmation and statement attached to the Form 86, he claimed that the Board’s Decision was unreasonable, that the Board and the Director failed to take into account many things and issues, and that the Immigration Officer did not know the real situation and condition of Pakistani culture as he had not been to the country.

12.  The applicant did not request an oral hearing before the Judge.  The Judge decided that it was appropriate to determine the application on paper without an oral hearing.

13.  The Judge found that the proposed grounds were not valid reasons to challenge the Board’s Decision as they were either the applicant’s comments or opinions without any evidence in support, or they were simply untenable.  The Immigration Officer could rely on country of origin information without going to Pakistan in order to understand the applicant’s situation in his home country.

14.  The Judge considered the Director’s Decision and the Board’s Decision with rigorous examination and anxious scrutiny, but did not find any error of law or procedural unfairness, nor ground to challenge the decisions as Wednesbury unreasonable or irrational.  In the premises, the Judge was not satisfied that there was any realistic prospect of success in the applicant’s intended application for judicial review and accordingly refused the leave application.

15.  In his decision of 30 August 2022, the Judge refused the applicant’s application for extension of time to appeal on the basis that the intended appeal had no reasonable prospect of success.

VI. Legal principles

16.  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

17.  The applicant was late when he filed his application for extension of time to appeal before the Judge.  His renewed application to this Court was again late by over one week.  The applicant did not provide any explanation for the serious delay but simply claimed in his affirmation that he did not have access to legal representation or legal advice.  This is not a valid explanation for his delay.  Nevertheless, we shall focus on the merits of this case.

2)  Prospect of the intended appeal

18.  The applicant did not provide any proposed grounds of appeal.  In his written submissions, he recited case authorities which are frequently used in general non-refoulement claims and statutory reference without explaining how those principles were related to his case.  He also complained that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.  There was no evidence to support this mere assertion.  In any event, there is no substance in this complaint because the Board did assess the credibility of the applicant’s case in a thorough and fair manner at [36] to [55] of the Board’s Decision.

19.  We agree with the Judge that there is no prospect of success in the intended appeal.  The Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

20.  Furthermore, the Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

21.  In the present case, the applicant has not identified any proper grounds of appeal or errors committed by the Judge.  The intended appeal is completely devoid of merits.

VIII. Disposition

22.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 14 September 2022.

Applicant, unrepresented, acting in person