RE SHAFI IBRAR

CAMP 129/2019

[2019] HKCA 1273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 133 OF 2017)

________________________

________________________

________________________

D E C I S I O N

________________________

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

1)  Renewed application for extension of time to appeal

1.1  On 11 April 2017, the applicant issued his application for leave for judicial review by Form 86.

1.2  The applicant’s intended judicial review was against the Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 21 March 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 22 July 2015 rejecting his non-refoulement claim.  The application was filed within time.

1.3  On 1 September 2017, Deputy High Court Judge Woodcock dismissed the applicant’s application.  

1.4  The applicant was entitled to appeal against the Judge’s refusal as of right.  If he did not do so within the 14-day period specified by law, he had to obtain an order for extension of time to appeal.  Being over 17 months out of time, the applicant issued an application on 11 March 2019 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 29 May 2019 rejected the applicant’s application for an extension of time to appeal.  On 14 June 2019, the applicant by summons issued a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paras 3 to 8.

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

2)  Factual background

2.  Briefly stated, the applicant is a Pakistani national.  He came to Hong Kong illegally and was shortly arrested.  He subsequently raised a non-refoulement claim based on his fear that if he was to return to Pakistan he would be harmed or killed by local members of the Muttahida Qaumi Movement who he said he had clashed with and killed his brother.

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

3.1  The Director decided against the applicant’s non-refoulement claim on 22 July 2015.  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 17 November 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 Decision to the Board.  The oral hearing was conducted on 4 November 2016.  The Board dismissed the applicant’s appeal on 21 March 2017.  In gist, the Board held that the applicant’s credibility was in issue because his story was ‘tainted with vagueness’.  Numerous important features of his story was simply responded with the applicant saying he did not remember or words that were equivalent. 

5)  Decisions of the Judge

5.1  In respect of the application for leave to apply for judicial review, the Judge analysed the Board’s decision in detail.  She found no substance in the applicant’s application for judicial review.  No error of law or procedure was found. 

5.2  In his decision dated 29 May 2019, the Judge found that the applicant made several applications for judicial review in the first instance court, which was clearly an abuse of process.  The Judge held there was no merit nor any real prospect of success if an appeal was to be heard.

6)  Legal principles

6.1  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;

(4)  Prejudice to the putative respondent if extension of time was granted.

6.2  Likewise the same consideration will apply to the present application for extension of time.  We will consider the merits of his intended appeal against the Judge’s decision of 1 September 2017 having regard to the above consideration.

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1  The applicant was more than 17 months late when he filed summons in the court below for extension of time to appeal.  It was a substantial delay.  Therefore, the intended appeal must satisfy real prospect of success before an extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.

(2)  Prospect of the intended appeal

7.2  In our judgment, the applicant does not meet that threshold.  Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.

7.3  In the present application, the applicant stated in his summons and affirmation that he would like leave to appeal as he did not have the means nor did he receive the decision of the Court on time.  He alleged that he is presently detained.  No particulars were provided by the applicant.

7.4  In his written submission, the applicant essentially provided a pro forma type of written submission which contained legal authorities that are commonly used in non-refoulement cases.  However, nowhere in his written submission contained any particulars as to how those legal principles applied to the specific circumstances of his case.  In summary, there was not a single complaint against the decision of the Judge.

7.5  We are of the view that the most important consideration in an extension of time to appeal application is whether there are merits in the intended appeal.  There are no merits in the applicant’s case.  He has not identified any error of law or procedural unfairness in the decision of the Judge.

8)  Disposition

8.  As the intended appeal is unarguable, it will be futile to grant any extension of time.  Accordingly, we will dismiss the applicant’s summons filed on 14 June 2019.