RE KHAN MUHAMMAD ARSHAD

CAMP 95/2020

[2020] HKCA 937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 95 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 998 OF 2018)

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D E C I S I O N

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

1)  Renewed application for extension of time to appeal

1.1 On 1 June 2018, the applicant issued his application for leave for judicial review by Form 86 against the decisions of the Director of Immigration and Torture Claims Appeal Board (‘the Board’).  The applicant’s application was late being outside of the three-month requirement under the Rules of the High Court (Cap. 4A) Order 53, rule 4 as the Board’s Decision was handed down on 25 April 2017.  Therefore, Deputy High Court Judge Bruno Chan treated the application as an extension of time for leave for judicial review application.  The Judge refused the application on 18 November 2019 (‘Judge’s Decision’).  Subsequently, the applicant made an application by summons on 22 November 2019 for leave to appeal against the Judge’s Decision.  On 29 June 2020, the Judge dismissed the applicant’s application (‘Judge’s Leave Decision’).  On 13 July 2020 and within time under Order 59, rule 2B(3), the applicant made a further application to this Court for what is essentially a renewed application for extension of time to appeal against the Judge’s Decision: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].

1.2 On 14 July 2020, the decision of H v Director of Immigration [2020] HKCFA 22 was handed down.  From 14 July 2020 onwards, the refusal of a Judge of an extension of time to make an application for judicial review is part and parcel of a refusal to grant leave to apply for judicial review and so the decision is appealable as of right by reason of Order 59, rule 21(1)(g): at paragraph 42 of H v Director of Immigration.  In other words, there is from 14 July 2020 onwards no further need under section 14AA of the High Court Ordinance (Cap. 4) for an applicant to seek leave to appeal before the first instance judge before he/she may appeal directly.

1.3 However, the applicant still has to bring his application to appeal within 14 days as prescribed under Order 53, rule 3(4) of the Rules of the High Court.  Thus, by the time the applicant’s summons was filed on 13 July 2020, the applicant was already out of time to appeal against the Judge’s Decision: see Re Ahmed Sajjad [2020] HKCA 733 at [7]-[8].

1.4 Given the circumstances, we are prepared to treat the applicant’s summons application as an application for extension of time to appeal against the Judge’s Decision.

2)  Factual background

2. Briefly stated, the applicant is a national of Pakistan.  He entered Hong Kong illegally on 21 October 2013.  He was arrested on 12 November 2013.  He subsequently raised a non-refoulement claim based on his fear that he would be harmed or killed by his uncle over a land dispute.

3)  The Director’s Decision and the Director’s Further Decision

3.1 The Director decided against the applicant’s non-refoulement claim on 3 March 2016.  The decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2 By a Further Decision of the Director dated 8 December 2016, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against the applicant.

4)  The Board’s Decision

4. The applicant appealed against the Director’s Decisions to the Board.  The Board dismissed the applicant’s appeal on 25 April 2017.  In gist, the Board found that the applicant’s account of events was incredible.  The applicant contradicted himself on whether his uncle attacked him on his chest or on the back.  The Board found that there were many instances where the applicant’s uncle could have shot and killed the applicant but he did not, notwithstanding repeated threats from his uncle.  The applicant admitted before the Board that his uncle was only trying to scare him.  It was a private dispute with no state actors involved.  The applicant did not submit further information to the Director to substantiate his risk to life BOR 2 claims.  

5)  Decisions of the Judge, Judge’s Leave Decision, Notice of Appeal, Applicant’s Written Submissions

5.1 In the Judge’s Decision of 18 November 2019 he held that the delay of more than 10 months was serious.  He did not accept the applicant’s explanation of being detained in correctional facilities which hindered his ability to be up to speed with his claim.  There was no evidence to support the applicant’s explanation of delay.  The Judge went on to analyse the applicant’s merits, and held that most of the applicant’s grounds were broad and vague assertions containing several key words and phrases without particulars on how they related to his case, or how the fact finders erred in their decisions.

5.2 The Judge’s Leave Decision stated that the applicant failed to indicate any error in his decision.

5.3 The applicant’s application of 13 July 2020 stated that he did not know the proper procedures and he had language barriers.

5.4 On 20 August 2020, the applicant lodged his written submissions to this Court.  In short, he complained about his lack of representation when the Director was assessing his BOR 2 claims.  He complained that there was no oral hearing for his BOR 2 assessment.  He complained that there was a lack of legal and language assistance.  He complained that certain country of origin information was outdated.  None of these complaints were directed at any error in the Judge’s Decision.

6)  Legal principles

6. In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, 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

7.1 We agree with the Judge that the applicant failed to give good reasons for the serious delay of over 10 months in making his judicial review application.

(2) Prospect of the intended appeal

7.2 We are of the view that the intended appeal of the applicant has no prospect of success.

7.3 The applicant merely stated that he did not know the procedure and he had language problems.  They are bare assertions unsupported by evidence.  Further, the applicant’s written submissions are complaints against the Director and the Board, not the against the Judge.  We cannot see merit in the applicant’s intended appeal.  The applicant has not identified any error in the Judge’s Decision.

8)  Disposition

8. As the intended appeal is unarguable, it will be futile to grant any extension of time.  Accordingly, we dismiss the applicant’s summons filed on 13 July 2020.