RE AMMAR ABDLMOEEN HUSSEIN IBRAHIM

CAMP 298/2023, [2024] HKCA 754

On Appeal From [2023] HKCFI 239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 298 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 871 OF 2019)

________________________

________________________

________________________

DECISION

________________________

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

1)  Renewed application for extension of time to appeal

1.  On 29 March 2019, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 871/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 28 February 2019 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’)  dated 10 December 2018 rejecting his non-refoulement claim.  Deputy High Court Judge KW Lung refused to grant leave on 31 January 2023.

2.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 14 February 2023).  Being out of time for over four months, the applicant took out an application on 16 June 2023 before the Judge requesting an extension of time to appeal.  The Judge on 1 August 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 29 August 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

4.  Under Order 59, rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

5.  On 15 April 2024, the applicant lodged with the Court a letter dated 12 April 2024 together with a bundle of documents consisting of 180 pages entitled ‘All Evidence and proof of support of my CAMP Appeal 298-2023’.  As far as can be understood from the applicant’s handwriting, he seems to suggest that he wishes to submit new evidence showing that he is wanted by the Jordanian government.  This is improper as the applicant does not have leave of this Court to adduce new evidence.  The applicant has never made a proper application to adduce new evidence.  It is trite that both the Court of First Instance and the Court of Appeal will not usurp the fact finding role of the Board unless it can be shown that it has made any error of law.  The directions of the Registrar of Civil Appeals dated 29 August 2023 [6], has clearly directed the applicant that no further document shall be lodged without leave of the Court, and document lodged in non-compliance will not be considered.  We will not consider these documents.

2)  Factual background

6.  The applicant is a Jordan national.  He departed Jordan and arrived in Hong Kong as a visitor on 8 August 2017 and was allowed to remain until 7 September 2017.  He then departed for Korea and came back to Hong Kong and was allowed to remain until October 2017.  The applicant overstayed.  He was then arrested and convicted for theft.  He raised his non-refoulement claim in October 2018[1].

7.  The basis of the applicant’s claim is that he was a Pakistani refugee living in Jordan.  He fears he would be harmed or killed by the family of his ex-wife for having sexual relations with the ex-wife’s sister.  He also fears he would be harmed or killed by the Jordanian people and authorities if he returns[2].

8.  The background facts have been summarized in the decision of the Judge at [5] to [7].

3)  The Director’s Decision

9.  The Director decided against the applicant’s non-refoulement claim on 10 December 2018.  The Decision covered Article 3 of the Hong Kong Bill of Rights (‘BOR 3’) (torture/inhuman treatment), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

4)  The Board’s Decision

10.  An oral hearing was conducted by the Board on 21 February 2019.  The Board dismissed the applicant’s appeal/petition, and confirmed the Director’s decisions.  The Board’s findings are summarized in the Judge’s decision at [10] to [12].  

5)  Decisions of the Judge

11.  In his decision dated 31 January 2023, the Judge held that the Court will not usurp the fact finding power of the Director and the Board unless it could be shown that there was any error of law.  It held that the Board did not believe the applicant’s evidence.  There was no error of law or procedural unfairness[4].

12.  In his decision dated 1 August 2023, the Judge held that the applicant failed to show that there is any realistic prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6)  Legal principles

13.  In considering whether to extend time for appeal, 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

14.  Under Order 53, rule 3(4)  of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge. 

15.  The Form CALL-1 decision was handed down on 31 January 2023.  The deadline for the appeal was 14 February 2023.  The applicant was about four months late when he filed his extension of time to appeal application on 16 June 2023.  The applicant’s explanation that he did not receive the decision and that he was unaware of the 14 day time limit is without merit, as the Judge has already stated that the according to Court record, the decision was sent to the applicant’s last known address on 31 January 2023[5].

(2)  Prospect of the intended appeal

16.  In the applicant’s summons, the applicant asked for ‘leave to advance a new sole ground of appeal’.  The applicant did not elaborate what that new ground is.

17.  The applicant’s affirmation which has an exhibit of 62 pages stated that he was unaware of the 14 day rule and he was unrepresented.  He further stated that he never received the decision at his residence, and he only knew about the appeal from his Immigration Officer. He stated that the Judge’s decision was reached unfairly without giving him any chance to clarify his case and the situation in his country.  The exhibit includes seven pages of handwritten notes, five pages of medical records, some identification evidence such as copies of passport and some country of origin information.

18.  In the applicant’s written submissions, he referred to general statements of law, quotation from cases and bald assertions of procedural unfairness.

19.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

20.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

21.  Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

22.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons filed on 29 August 2023.