RE ZULFIQAR KHAN

CAMP 113/2023, [2024] HKCA 808

On Appeal From [2023] HKCFI 91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 113 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 420 OF 2019)

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DECISION

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

1.  On 19 January 2024, this Court handed down decision ([2024] HKCA 62) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge K W Lung given on 16 January 2023 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 31 January 2024, 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 9 February 2024.

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 applicant stated the following in the notice of motion in summary :

1)  The applicant did not realize that failing to lodge written submissions would mean losing the chance for an oral hearing.  The applicant has no knowledge of judicial review and did not receive translation help from friends;

2)  The Judges were procedurally unfair.  The applicant requested for the help of legal advisor but was refused.  The applicant’s case was rejected by the Board; and

3)  The Board made a decision on the applicant’s case based on other applicants with the same reason.  The Pakistan army are killing civilians.

7.  The applicant’s written submission consists entirely of general statement of law, quotations from cases, bald assertions of procedural unfairness and reference to section 37ZT of the Immigration Ordinance.

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.  All the matters contained in the applicant’s notice of motion and written submission are matters that are within the province of the Board.  They do not show how or where the Judge made any error of law or procedural unfairness.

9.  Importantly, 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.

CAMP 113/2023, [2024] HKCA 62

On Appeal From [2023] HKCFI 91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 113 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 420 OF 2019)

________________________

________________________

________________________

DECISION

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

1) Renewed application for extension of time to appeal

1.  On 14 February 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 420/2019. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 30 January 2019 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 25 April 2018 rejecting his non-refoulement claim. Deputy High Court Judge KW Lung refused to grant leave for judicial review on 16 January 2023.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 30 January 2023). Being out of time for around 18 days, the applicant took out an application on 17 February 2023 before the Judge requesting an extension of time to appeal. The Judge on 16 March 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 21 March 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  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

5.  Briefly stated, the applicant is a Pakistan national. He entered Hong Kong illegally from the Mainland in July 2015. He raised his non-refoulement claim in November 2015 alleging that he would be harmed or killed by the family of his girlfriend Shazia because of his relationship with her which led to her impregnation.

3) The Director’s Decision

6.  The Director decided against the applicant’s non-refoulement claim on 25 April 2018. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4) The Board’s Decision

7.  The applicant appealed against the Director’s decision to the Board. A hearing was conducted on 16 August 2018. The Board dismissed the applicant’s appeal on 30 January 2019 and the Director’s decision was confirmed. Before the Board, the applicant chose not to make oral submissions. The applicant did not call any witness. The Board held that the alleged ill-treatment from the Shazia family is not ‘as imminent and substantial as the applicant asserted’. The applicant was only beaten up and left with a threat. The Board held that state protection was available, and internal relocation was possible. The Board held that there was no real chance that the applicant will be harmed or killed by the Shazia family.

5) Decisions of the Judge

8.  In his decision dated 16 January 2023, the Judge identified and considered the grounds relied upon by the applicant. He held that there was no valid reason to challenge the Board’s decision. There was no error of law or procedural unfairness.

9.  In his decision dated 16 March 2023, the Judge held that the applicant’s reasons in support of his application were not acceptable because he never raised these reasons before the Board nor did he raise them before the Judge in his leave application. The Judge held that the applicant failed to raise any valid reason to show any realistic prospect of success in his intended appeal. The application for extension of time for appeal was refused.

6) Legal principles

10.  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

11.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to take out an appeal from the date of the Judge’s decision.

12.  The Judge’s decision was handed down on 16 January 2023. The deadline for appeal was 30 January 2023. The applicant was about 18 days late when he filed his application for extension of time to appeal on 17 February 2023. The applicant stated that he checked his mailbox from time to time but it was only after his immigration officer called him and he then checked his mailbox that he found the court’s letter. He further stated that he could not provide proof (i.e. evidence) earlier but now he can. The Judge held that the applicant’s reasons in his affirmation filed in support of the application (namely, he did not submit any valid proof to the Board as he was unable to bring the proofs with him when he came to Hong Kong, but he was able to provide proofs now) were not mentioned previously. The Judge further stated that the reason why the Board refused the applicant’s case was not because of lack of proof of evidence.

(2) Prospect of the intended appeal

13.  In the applicant’s summons and affirmation, the applicant repeated his previous statement about the reason for his delay in appealing against the Judge’s decision. In his affirmation, he made a bare allegation that the Board had no valid reason to refuse his case. In his written submissions, he referred to case authorities and statutory references that are used in non-refoulement cases without specifying how they relate to his case. He claimed that he had ‘proof of the couple when the killed for honour of his family’.

14.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

15.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for appeal.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.

8) 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 filed on 21 March 2023.

Applicant, unrepresented, acting in person