Re Makhtoom Waseem

CAMP 514/2022, [2023] HKCA 819

On Appeal From [2022] HKCFI 1835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 514 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 75 OF 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 23 June 2022, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant for leave to apply for judicial review concerning the applicant’s non-refoulement claim (“the JR Decision”) [2022] HKCFI 1835. 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 11 July 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 23 November 2022 [2022] HKCFI 3507. 

3.On 5 December 2022, the applicant filed a summons in CAMP 514/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal against the JR Decision.

4.In compliance with the directions made by the Registrar of Civil Appeals on 5 December 2022, the applicant lodged his written submissions in support of the Summons on 19 December 2022. 

5.On 20 March 2023, the applicant filed a Request for Dismissal of Appeal requesting the dismissal of “the notice of motion filed on 5 December 2022.”  This is obviously a reference to the Summons filed on 5 December 2022 for an extension of time to appeal against the JR Decision and we will treat it as a request to withdraw the Summons. The practice of this court is to consider and if appropriate dismiss such application instead of merely granting leave to withdraw: see Rini Artini [2020] HKCA 709 at [9].

6.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

7.The applicant is a national of Pakistan. He entered Hong Kong illegally on 26 August 2013 and was arrested by police on 28 August 2013.  He was then referred to the Immigration Department for investigation and on 31 August 2013, he raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was subsequently taken to be a non-refoulement claim alleging that if refouled, he would be harmed or even killed by his paternal uncle and sons over their land dispute with the applicant’s family.  The factual background of this case was succinctly summarised by the Judge at [2] of the JR Decision ([2022] HKCFI 1835).

8.By a Notice of Decision dated 26 November 2015 and a Notice of Further Decision dated 6 March 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 Risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

9.On 9 December 2015, the applicant filed his Notice of Appeal with the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) against the Director’s decisions.  The applicant attended a hearing on 11 July 2016 and by its decision dated 20 April 2017, the appeal was dismissed.  The Board found that the applicant’s evidence on the dispute of family land with his uncle was illogical and implausible.  Even on the applicant’s account of events, he was only beaten with wooden sticks and sustained minor injuries and it was his own speculation and bare allegations that the police would not help him and that his cousins with political background might frame him and his brothers in false cases.  Further, he only raised his non-refoulement claim after his arrest by the police which cast doubt if he is a genuine asylum seeker [19].  For the aforesaid reasons, the Board dismissed the applicant’s non-refoulement claim on all applicable grounds. 

10.On 12 May 2017, the applicant was repatriated back to Pakistan.   

Request To Make Subsequent Claim

11.More than 4 years later on 14 October 2021 the applicant again entered Hong Kong illegally from Mainland China, and subsequently surrendered to the Immigration Department.  On 15 November 2021, he made a request to raise a subsequent claim on the basis that upon returning to his home in Pakistan, he still received threats to his life and attacks from his uncle over the land dispute and so he had to save his life by fleeing from Pakistan for Hong Kong to seek protection. 

12.By a Notice of Decision dated 11 January 2022, the Director refused to allow the applicant to make a subsequent claim (“the Director’s 2022 Decision”).  It was found that the basis of the applicant’s subsequent claim was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing as required under section 37ZO of the Immigration Ordinance (Cap. 115) (“IO”) to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

Application for leave to apply for judicial review

13.On 20 January 2022 the Applicant filed a Form 86 for leave to apply for judicial review of the Director’s 2022 Decision, in which he stated as follows:

“… I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.”

The JR Decision

14.The applicant attended an oral hearing on 3 May 2022.   After due consideration of the Director’s 2022 decision, and the grounds of his intended challenge, the Judge refused to grant leave to apply for judicial review for reasons set out in [11] - [12] of the JR Decision:

“11. These are however all just some vague and bare assertions of the Applicant without any details or particulars or elaboration as to how they would apply to his case, or in what way would they be relevant to his claim which on the factual basis of his own case at the highest was just a private family land dispute without any official involvement that I fail to see how extra-judicial killings would be relevant to his case or how his claim would engage the BOR 2 ground in its limited scope, or in what way was the Director’s decision unfair or unreasonable. As such and as he was also unable to do so either at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge.

12.  Having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim.”

Application for extension of time to appeal the JR Decision

15.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 11 July 2022 for an extension of time to appeal.  That was dismissed by the Judge on 23 November 2022.  Hence, the Summons to this court. 

Discussion

16.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). 

17.As for (1), the applicant’s delay was not significant.   

18.As for (2), the reasons for the delay, the applicant explained to the Judge during the hearing that he tried to seek legal assistance which caused the slight delay.

19.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not put forth any proper or valid proposed grounds of appeal and there is no prospect of success in his intended appeal.  He merely stated in his supporting affirmation that he had just married a Hong Kong resident and he wanted to stay with her in Hong Kong.

20.In his written submissions, he stated that he came to Hong Kong for his safety as his enemy is powerful and influential in his home country.  He claimed that the Pakistani government and the police would not help him.  The Director, the Board and the Court of First Instance all rejected his claim and he urged the Court of Appeal to grant his application.  

21.It was clear from the Director’s 2022 Decision that the Director had duly considered the applicant’s submissions on his request to make a subsequent claim and after careful examination of the factors raised by the applicant’s fear of being harmed by his uncle and cousins upon his return to his home country, it was found that the claim did not constitute any change of circumstances as his new claim was based on the same facts as his previous claim which had been properly assessed by the Board, and there was no evidence to support the allegation that the attack suffered by the applicant by unknown assailants after his repatriation to Pakistan was related to the family land dispute.

22.The Director had properly exercised its discretion in refusing the applicant’s subsequent claim and there is no error of law or procedural unfairness in the Director’s 2022 Decision or any failure to apply the high standard of fairness in the consideration and assessment of the applicant’s request.

23.We are satisfied that the Judge had reviewed the Director’s 2022 Decision as well as the Director’s and Board’s previous decisions with rigorous examination and anxious scrutiny, and we agree with the Judge that there is no prospect of success in the applicant’s intended application for judicial review and the leave application should be refused.

24.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 5 December 2022.

The applicant, unrepresented, acting in person