RE MUHAMMAD RAZZAQ

CAMP 47/2022

[2023] HKCA 427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 47 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2873 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 1530)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge K W Lung given on 11 June 2020 pertaining to his own withdrawal of his non-refoulement claim.

2.  On 27 October 2022, the applicant filed a notice of motion applying for leave to appeal this Court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 8 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 is as follows :

‘ I would like to infom[r] Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwheming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrayed a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.’

7.  In the applicant’s written submissions, he stated general non-refoulement legal principle and statutory authority without specifying how they relate to the particulars of his case.

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 47/2022

[2022] HKCA 1530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 47 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2873 OF 2018)

____________________

____________________

____________________

D E C I S I O N

____________________

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

1)  Renewed application for extension of time to appeal

1.  On 14 December 2018, 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 29 October 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 20 December 2016 rejecting his non-refoulement claim. 

2.  On 21 April 2020, the applicant wrote to the Court requesting to withdraw his application as he wanted to return to Pakistan.  In his decision of 11 June 2020, Deputy High Court Judge KW Lung acceded the applicant’s request and dismissed the application accordingly.

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, the applicant took out an application on 4 November 2021 (late for over a year) requesting an extension of time to appeal.  The Judge on 16 December 2021 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 10 February 2022, the applicant filed the present summons out of time (late for eight weeks) 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.

2)  Factual background

6.  The applicant is a Pakistan national.  He entered Hong Kong on 25 December 2006 and was arrested by the police on 2 May 2007.  He lodged the Non-refoulement Claim Form on 21 November 2016 on the basis that he would be harmed and killed by a Mr Kazim Mohammed and his clan due to a private dispute.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non‑refoulement claim on 20 December 2016.  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.

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board on 3 January 2017.  An oral hearing was conducted on 27 June 2017.  The Board dismissed the applicant’s appeal on 29 October 2018.  In essence, the Board found that the dispute between the applicant and Kazim was private in nature that did not involve the state.  The Board also was not persuaded by the applicant’s account of events as it contained various inconsistencies, which further undermined the veracity of the applicant’s claim.  The Board was of the view that the applicant would not be at risk of harm if he is returned to Pakistan.

5)  Decision of the Judge

9.  The Judge acceded to the applicant’s request to withdraw his judicial review application and dismissed the application for leave to apply for judicial review.

10.  In his decision dated 7 October 2021, the Judge held that as the decision was based on the circumstances at the time of the applicant’s own request, there was nothing to appeal against.  Therefore, the Judge did not see any realistic prospect of success in the applicant’s intended appeal, and refused to grant an extension of time and dismissed the summons accordingly.

6)  Legal principles

11.  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.

7)  Analysis

1)  Length of delay and reasons for the delay

12.  The applicant’s delay of over a year was very substantial and no justification nor explanation has been provided for the delay.  Therefore, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz[2021] HKCA 636 at [15]; Re Ansar Muhammad[2018] HKCA 227 at [8]; Re MA[2019] HKCA 1020 at [18]. 

2)  Prospect of the intended appeal

13.  On the prospect of an 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.

14.  In the present summons and supporting affirmation, the applicant did not identify any proper grounds of appeal or errors committed by the Judge.  As for the applicant’s written submission, he referred to authorities and principles in this area of the law without providing any explanation nor elaboration.

8)  Disposition

15.  In light of the above reasons, the applicant has failed to provide any proper grounds of appeal and we agree with the Judge that there is nothing in his decision of 11 June 2020 that the applicant can appeal against.  It is an abuse of process for the applicant to challenge the Judges’ dismissal of his application when he himself sought for the withdrawal of his application.  Accordingly, we dismiss the applicant’s summons filed on 10 February 2022.