CAMP 98/2023, [2023] HKCA 1213
On Appeal From [2022] HKCFI 3196
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 98 OF 2023
(ON AN INTENDED APPEAL FROM HCAL NO 2373 OF 2018)
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| RE: | HUSSAIN MUJADAD | Applicant |
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| Before: | Hon Yuen and Chow JJA in Court |
| Date of written submissions: | 20 March 2023 |
| Date of Judgment: | 27 October 2023 |
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J U D G M E N T
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Hon Yuen JA (giving the Judgment of the Court):
1. On 18 October 2022, DHCJ K. W. Lung (“the Judge”) refused to grant leave for the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.
2. On 15 December 2022, the applicant took out a summons to apply for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 30 January 2023.
3. On 6 March 2023, the applicant filed a summons in CAMP 98/2023 (“the Summons”) with the Court of Appeal for extension of time to appeal against the JR Decision. He lodged his written submissions on 20 March 2023.
4. Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.
Background
5. The applicant is a national of Pakistan. He entered Hong Kong illegally and surrendered to the Immigration Department on 3 August 2015. On 6 April 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his cousins who he considered caused his father’s death and wanted him to cease investigation into his father’s death. The factual background of this case was succinctly summarised by the Judge at [4] – [5] of the JR Decision ([2022] HKCFI 3196).
6. By a Notice of Decision dated 22 December 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], BOR 3 risk[2], torture risk[3], and persecution risk[4].
7. The applicant appealed against the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”). He attended an oral hearing on 9 July 2018. By its decision dated 24 August 2018, the Board dismissed the appeal and confirmed the Director’s decision. The Board found that the applicant’s case was inherently incredible. The Board noted that the autopsy report of the applicant’s father stated that it was a case of suicide, while the applicant claimed that it was his cousins who killed his father. The Board further found that the alleged threats from the cousins were just empty threats as there was only one single incident of attack during a period of 15 years. The Board also considered that the internal relocation is a viable option for the applicant in Pakistan to avoid his cousins. Therefore, the Board rejected the applicant’s claim on all applicable grounds and dismissed the appeal.
Application for leave to start judicial review
8. On 29 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the decision of the Board. He did not put forward any specific grounds for his intended challenge but only stated in his supporting affirmation that he was not satisfied with the decisions of the Director and the Board and that his life is not safe in his country.
The JR Decision
9. The Judge considered the application on paper as the applicant did not request for an oral hearing. After due consideration of the decision of the Board, the Judge refused to grant leave for the applicant to apply for judicial review for reasons set out in [16] to [18] of the JR Decision:
“16. The Board had assessed his case and did not accept his evidence on the facts of his case. Those grounds in paragraph 12 above are not valid reasons to challenge the Board’s Decision.
17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”
Application for extension of time to appeal against the JR Decision
10. As mentioned earlier, the applicant failed to file a notice of appeal within time. He filed a summons in the Court of First Instance on 15 December 2022 for an extension of time to appeal. That was dismissed by the Judge on 30 January 2023. Hence, the Summons to this court.
Discussion
11. In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).
12. As for (1), the applicant was late by about 1.5 months when he filed the time extension summons with the Court of First Instance.
13. As for (2), the reasons for the delay, the applicant explained in his affirmation that he got the judgment late. The court sent the JR Decision to the applicant’s address as stated in his Form 86 on 18 October 2022. It is noted that the address stated in the applicant’s summons for extension of time filed on 15 December 2022 is different from the address he previously provided to the court. However, he did not file any notice of change of address for service with the court. 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 applicant’s explanation cannot justify his delay in the present application.
14. The most important consideration is (3), the prospect of success of the intended appeal from the JR Decision.
15. The applicant did not state any grounds of appeal in his Summons or supporting affirmation.
16. His written submissions also do not contain any valid grounds.
17. In this application, the applicant failed to identify any errors of law, failure to take account of relevant matters already placed before the court or any other mistakes in the JR Decision.
18. We are satisfied that the Judge had reviewed the decision of the Board with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.
19. As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 6 March 2023.
(Maria Yuen)
Justice of Appeal | (Anderson Chow)
Justice of Appeal |
The applicant, unrepresented, acting in person
[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[2] This refers to the 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.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[4] 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.