RE ASIF MUHAMMAD

CAMP 148/2023, [2024] HKCA 717

On Appeal From [2024] HKCA 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 148 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2374 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 17 May 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 2 May 2024 (“the Judgment”)  ([2024] HKCA 358).  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the order of Deputy High Court Judge P Li (“the Judge”)  dated 10 September 2021, by which the Judge allowed the applicant to withdraw his application for leave to apply for judicial review.

2.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

4.  In his Notice of Motion, the applicant stated:

“1. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

2. There is some error in law in my decision. The decision maker just relied on COL information and my previous facts, which were favor on rejecting my claim.

3. Actual life occurs in different situations than COL information. Officers and courts prefer to ignore the overwhelming evidence of violence towards minorities, searching for unrealistic silver linings.

4. The Judge did not apply the law properly.” (sic)

5.  In his supporting affirmation dated 17 May 2024, the applicant stated that his was unrepresented and had no means to seek any proper legal advice.  He also vaguely stated that he understood there was a good ground of appeal that was not necessarily considered at the stage of his appeal and that the merits of this ground of appeal constitute sufficient reason for the court to allow the appeal. However, he did not specify what the purported ground of appeal was.

6.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 30 May 2024.  In those submissions, he generally cited various case authorities on the high standards of fairness and Wenesbury unreasonableness as well as section 37ZT of the Immigration Ordinance (Cap 115)  concerning the late filing of notice of appeal before the Board.  Those submissions are however all vague and general grounds with no specific particulars as to how each applies to his case.

7.  In our view, there is no merit in his application.  The matters raised in his Notice of Motion, supporting affirmation and written submissions are all general and bare allegations without any specific particulars or explanation.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  In addition, his allegations are essentially a mere regurgitation of those submissions he had previously made before this court in his appeal, which we had already considered and rejected: see [13] - [20] of the Judgment.  More importantly, he fails to identify any error in the Judgment with specific particulars.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3]. Furthermore, high standards of fairness also do not entail free legal representation at all stages of the proceedings or interpretation service being made available at any time the applicant desires: Barroga Escolastica Tejero[2021] HKCA 279 at [3].  Clearly, his assertions do not constitute proper grounds of appeal and must fail.

8.  Further and in any event, even taking them at their highest, those allegations remain fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant fails to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion is dismissed.

The applicant acting in person

CAMP 148/2023, [2024] HKCA 358

On Appeal From [2023] HKCFI 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 148 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2374 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 11 April 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge To (“DHCJTo”)  dated 13 March 2023([2023] HKCFI 736)(“the EOT Decision”)  refusing to grant him an extension of time to appeal against an earlier order of Deputy High Court Judge P Li (“DHCJLi”)  dated 10 September 2021 (“the Order”)  allowing the applicant to withdraw his application for leave to apply for judicial review (“the JR Leave application”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 11 October 2018, dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 14 December 2017 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Pakistan.  He claimed to have last entered Hong Kong illegally on 3 November 2013.  He was then arrested by the police for illegal remaining on the same day.  By a written representation dated 8 November 2013, he lodged a non­refoulement claim on the basis that if refouled, he would be harmed or killed by his cousin Imran and the political party he belonged to because the applicant had married his fiancée.

5.  By a Notice of Decision dated 14 December 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  On 11 October 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  After considering the evidence, the Board had doubts as to the applicant’s claims that he had been attacked on a number of occasions, but for the purpose of its decision, the Board accepted the applicant’s account as described.  However, the Board further found that the risk of harm befalling the applicant as low and that state protection and internal relocation would be available to him. Accordingly, the Board considered that he failed to substantiate his claim on all applicable grounds and dismissed his appeal and reaffirmed the Director's Decision.

7.  On 29 October 2018, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86.  In his supporting affirmation, he only stated that it would not be safe for him to return to his home country.

8.  On 2 September 2021, the applicant filed an affirmation that he wanted to go back to Pakistan as all his problems were solved and that his mother was sick and he wanted to return to meet her for the last time.  In substance, it was a withdrawal of his application for leave to apply for judicial review (“the Withdrawal Application”).

THE JUDGES’ DECISIONS

9.  Acceding the applicant’s Withdrawal Application, on 10 September 2021, DHCJ Li ordered that the JR Leave Application be withdrawn.

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 12 December 2022, the applicant applied by summons with a supporting affirmation for “leave to appeal out of time” against the Order.  By that time, he was almost one year and three months late with his intended appeal.  In his supporting affirmation (“the December Supporting Affirmation”), he alleged that was acting in person and that he received fresh information from his family that he would still face serious threats in his home country.

12.  On 13 March 2023, DHCJ To dismissed his application.  DHCJ To noted that that the Order was made at the applicant’s own request and upon his own application.  There was nothing for the applicant to appeal against.  In substance, his application was to re-open his JR Leave Application which he had withdrawn.  However, the Judge came to the view that his leave application was no longer extant and might not be reopened, unless he could demonstrate that the Order was a nullity because his decision to make the Withdrawal Application was the result of some vitiating elements such as mistake, misrepresentation and duress.  The applicant failed to demonstrate that there was any misunderstanding of any fact which led to his decision to withdraw the JR Leave Application.  Accordingly, DHCJ To held that the court was functus officio and that the applicant’s application for extension of time to appeal the Order, which effectively was an application to reopen his leave application, be refused.

THIS APPLICATION

13.  By a summons and a supporting affirmation filed on 11 April 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In his summons, he gave no reason for his delay or any grounds of his intended appeal.  In his supporting affirmation, the applicant stated that he understood he had a good ground of appeal that was not considered before the Judge but failed to specify what the said ground was.  He further alleged that he was unrepresented and did not have access to legal device.

14.  Pursuant to the directions of the Registrar of Civil Appeals dated 11 April 2023, the applicant lodged his written submissions on 25 April 2023.  In those submissions, he cited some case law and legal principles on “high standard of fairness” and Wednesbury unreasonableness.  However, he failed to specify with particulars how those legal propositions are relevant to his case.

DISCUSSION

15.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Order.

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike[2019] HKCA 702, at [19].

18.  In our view, the applicant’s delay of almost one year and three months is very substantial and inordinate.  The applicant has failed to give any reason, let alone good reason, to explain his delay.

19.  Further and more importantly, there is also no merit in the applicant’s intended appeal. As mentioned above, the Order to allow the withdrawal of the JR Leave Application was based on the applicant’s own affirmation, which is not retracted, indicating that his problems in his home country were all solved and that he wished to return to his home country, and thus this application to withdraw.  The December Supporting Affirmation about alleged fresh information of risks does not by itself amount to an operative mistake to vitiate the applicant’s said earlier voluntary position in support of the Withdrawal Application.  There was therefore nothing irregular for DHCJ Li to make the Order allowing the JR Leave Application to be withdrawn, and the applicant has failed to show why he could and should be allowed to re-open the JR Leave Application.  See: Re Manik Md Mahamudun Nabi[2022] HKCA 471 at [19] and Ferrolinon Jasmin Punto v Torture Claims Appeal Board[2023] HKCA 1073 at [14] - [17].

20.  In the premises, there is no prospect of success in the applicant’s intended appeal.

DISPOSITION

21.  The application for extension of time to appeal is refused, and the summons taken out on 11 April 2023 is dismissed.

The applicant acting in person