Re Khan Asad Ali

CAMP 566/2021

[2022] HKCA 1851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 566 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 3005 OF 2018)

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Before:  Hon Cheung and Yuen JJA in Court

Date of Judgment:  14 December 2022

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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 19 April 2021, DHCJ P. Li (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) 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.The applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance on 4 June 2021 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 9 December 2021.

3.On 16 December 2021, the applicant filed a summons in CAMP 566/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.Pursuant to the directions made by the Registrar of Civil Appeals on 16 December 2021, the applicant should lodge his written submissions on or before 30 December 2021. He failed to do so. It was further directed that in the event the applicant failed to lodge his written submissions, he shall be deemed to have abandoned his right to rely on written submissions, and the matter will be referred to the Court of Appeal for determination based on the available materials.

5.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

6.The applicant is a national of Pakistan. He entered Hong Kong illegally on 14 January 2016 and was arrested by the police on the same day. On 17 January 2016, he raised his non-refoulement claim alleging that if refouled, he will be harmed or even killed by his cousin Zubair (“Z”) and his people over a land dispute. The factual background of this case was succinctly summarised by the Judge at [2] – [8] of the JR Decision ([2021] HKCFI 1018).

7.By a Notice of Decision dated 7 February 2018, the Director of Immigration (“the Director”) had decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”). The applicant attended an oral hearing on 29 October 2018. By its decision dated 20 December 2018, the Board dismissed the appeal. For the reasons set out at [31] to [46], the Board found that the applicant’s evidence was inconsistent and unreliable. It was implausible that the land in dispute was transferred to the applicant since his father’s death in 2003, and despite some threats in 2005-2006, it was only in 2014-2015 that Z threatened to kill the applicant in order to coerce him to transfer the land to him. The applicant was not harmed at all between 2003 and 2015. The applicant further admitted at the hearing that since he left Pakistan in 2016, his family was still farming the land, and Z had not taken any action to take the land. The Board found that the applicant did not really know which party Z belonged to, and had alleged that Z had changed his allegiance from one political party to another so as to instil some political flavour into his claims. The land dispute was private in nature without any state instigation or acquiescence. Relevant country of origin information (“COI”) suggests that there is reasonable state protection, and internal relocation is a reasonable and viable option. For the aforesaid reasons, his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.On 28 December 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision. In his supporting affirmation, he pointed out that his life was in danger in Pakistan. He requested to stay in Hong Kong until the problem was solved.

The JR Decision

10.The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of the Board’s decision, the Judge refused leave for judicial review for reasons set out in [13] - [15] of the JR Decision:

“13. The applicant applied for leave to apply for judicial review on 28/12/2018. In his supporting affirmation, he pointed out that his life was in danger in Pakistan. He asked to stay in Hong Kong until the problem was solved.

14. In judicial review, this court decides whether there is any error in law and procedures. Whether the decision of the TCAB is irrational. In general, this court would not interfere with the findings of facts.

15. I agree with the adjudicator that the applicant was not credible in various important aspects. In my judgment, there is no error of law or procedure. The decisions are reasonable.”

Application for extension of time to appeal the JR Decision

11.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 4 June 2021 for an extension of time to appeal. That was dismissed by the Judge on 9 December 2021. Hence, the Summons to this court.

Discussion

12.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).

13.As for (1), the applicant was late by more than 1 month between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance. His delay was substantial.

14.As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he did not receive the JR Decision. However, the court file showed that the JR Decision was sent to his last reported address on 19 April 2021 (the same day the JR Decision was handed down) and it was not returned through the post. There is no good reason for the applicant’s delay.

15.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant did not provide any grounds of appeal against the JR Decision. Upon the Judge’s review of the Board’s decision, he did not find the Board had erred in any respect.

16.It is clear from the Board’s decision that the applicant’s case was rejected for lack of credibility. The Board found it implausible that Z only threatened to kill the applicant more than 12 years after the applicant had inherited the land from his father, and the applicant’s admission that Z had not taken any action to take over the land after the applicant left Pakistan in 2016 showed that the applicant’s case that Z was eager to take his land was unsubstantiated. Further, the Board found the applicant did not even know which party Z supported. Having consider the relevant COI, the Board found that there is reasonable state protection and the applicant may reasonably and safely relocate to other parts of Pakistan. It is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds. As with the Judge, we do not see any in this case.

17.We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

18.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 16 December 2021.

The applicant, unrepresented, acting in person