Case Detail

CAMP 63/2022

[2023] HKCA 164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 63 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1944 OF 2018)

________________________

BETWEEN
	Jawad Muhammad	Applicant
	and
	Torture Claims Appeal Board / Non refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and Cheung JA in Court

Date of Judgment:

9 February 2023

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Cheung JA) handed down on 29 July 2022 ([2022] HKCA 1104). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 15 December 2021 refusing to grant leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 3 August 2022 that the applicant shall lodge written submissions on or before 17 August 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Pakistan. He entered Hong Kong illegally on 12 May 2016 and was arrested by the police on the same day. On 16 May 2016, he lodged a non-refoulement claim. His claim was made on the basis that he would be harmed or killed by members of the Pakistan Muslim League (N) and is worried he would be arrested by the police in Pakistan for murder.

4. He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 8 February 2022[2].

5. On 21 February 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 29 July 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6. The applicant filed a Notice of Motion on 3 August 2022 to seek leave to appeal to the Court of Final Appeal but he did not provide any specific ground of appeal.

Analysis and disposition

7. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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. As the applicant did not give any grounds of appeal, nor did he lodge any written submissions in support of his application, he failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

9. For these reasons, we refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 3 August 2022.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 3692

[2] [2022] HKCFI 271

CAMP 63/2022

[2022] HKCA 1104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 63 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1944 OF 2018)

________________________

BETWEEN
	Jawad Muhammad	Applicant
	and
	Torture Claims Appeal Board / Non‑refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Cheung JA in Court

Date of Written Submission: 12 April 2022

Date of Judgment: 29 July 2022

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1. On 15 December 2021, Deputy High Court Judge K W Lung refused to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2. On 8 February 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no realistic prospect of success in the intended appeal[2].

3. On 21 February 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4. The applicant is a national of Pakistan. He is 38 years old. He entered Hong Kong illegally on 12 May 2016 and was arrested by the police on the same date. On 16 May 2016, he lodged a non-refoulement claim. His claim was made on the basis that he would be harmed or killed by members of the Pakistan Muslim League (N) (“PML(N)”) and is worried he would be arrested by the police in Pakistan for murder.

The decisions of the Director and the Board

5. By a Notice of Decision dated 25 January 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6. The applicant appealed against the Director’s decision to the Board and attended the hearing before the Board on 21 August 2018. Although the Board accepted that the applicant had encountered the alleged incidents and sustained injuries inflicted by the PML(N) members, it was found that the applicant should be excluded from protection under Article 1F of the 1951 Convention relating to the Status of Refugees as he had committed serious non-political crime by killing three people before coming to Hong Kong. The Board further found that the applicant’s injuries did not attain the requisite minimum severity. Besides, the Board noted that the applicant would be likely to face capital penalty for murder but considered that he failed to demonstrate there is a real risk that the Pakistani government would violate his rights protected by BOR 2. Thus, the Board dismissed the appeal on 12 October 2018.

The judge’s decision

7. On 14 September 2018, the applicant filed a Form 86 and an affirmation to apply for leave to bring judicial review against the Board’s decision. The applicant only stated that he could not go back to his home country because his life is still in danger back there without specifying any grounds of his intended challenge against the Board’s decision. As he did not request for an oral hearing, Deputy High Court Judge K W Lung considered the application on paper. The judge found that the applicant did not have any valid ground in support of his leave application and there is no error of law or procedural irregularity in the decision of the Board. Thus, the judge concluded that the intended judicial review has no realistic prospect of success and dismissed the leave application on 15 December 2021.

Grounds of appeal

8. The applicant stated his intended grounds of appeal in the written submissions which may be summarised as follows:

(1)  the judge failed to find error in the Board’s decision but the Board made many errors;
(2)  the court did not want to listen to the applicant’s complaint about his country; and
(3)  the court took sides with the Director.

Analysis and disposition

9. 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.

10. 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 judge’s order was made on 15 December 2021. The applicant took out a summons in the court below on 10 January 2022. He was late for 12 days. He explained that he was late because he did not receive the High Court judgment.

11. The judgment was sent to the applicant’s address as stated in the notice of change of address[7] filed by him on 10 December 2018 by post on 15 December 2021. It is noted that the applicant stated a new address in his summons for extension of time[8] filed at the court below on 10 January 2022 but he did not file notice of change of address to inform the court of his new address.

12. It is the duty of a litigant 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). Under these circumstances, the delay in the present case is not justified.

13. As the delay is not excusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14. In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

15. 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. If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16. The applicant’s grounds in the present application are just bare assertions without particulars and evidence in support. In particular, he failed to identify the alleged errors in the Board’s decision and did not put forward evidence to refute the Board’s findings. He failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17. For these reasons, there is no prospect of success, let alone real prospect of success, in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judgment of 15 December 2021 and dismiss the renewed application for leave to appeal filed on 21 February 2022.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 3692

[2] [2022] HKCFI 271

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] At 316 Shanghai Street, Yaumatei

[8] At 366 Shanghai Street, Yaumatei

JAWAD MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Related cases with same parties

Files (2)