RE MD HASNAIN

CAMP 74/2022

[2022] HKCA 1532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 74 OF 2022

(on AN INTENDED appeal FROM HCAL NO. 2988 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.  On 27 December 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 20 December 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) 27 February 2018 rejecting his non-refoulement claim. 

2.  In his decision of 22 July 2021, Deputy High Court Judge P Li refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time, the applicant took out an application on 6 August 2021 (late by one day) requesting an extension of time to appeal.  The Judge on 14 January 2022 rejected the applicant’s application.    

4.  Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 3 March 2022, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal. 

5.  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 submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.  The applicant is an Indian national.  He entered Hong Kong in December 2014 as a visitor but overstayed and was subsequently arrested.  He lodged his non-refoulement claim in February and March of 2017 on the basis that that he would be harmed or killed in India for refusing to join an opposing political party, namely the Bharatiya Janata Party (‘BJP’). The applicant alleged that people from the BJP assaulted him seriously in his home and forced his family to move to another town in India.  The applicant’s father was allegedly killed in a subsequent incident. 

3)  The Director’s Decision

7.  The Director decided against the applicant’s non‑refoulement claim on 27 February 2018.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board on 8 March 2018.  An oral hearing was conducted on 26 October 2018.  The Board dismissed the applicant’s appeal on 20 December 2018 and confirmed the Director’s decision.  In essence, the Board did not accept the case of applicant.  It did not accept that he was attacked by the BJP and that the applicant had instead manufactured evidence to advance his claim.  In light of its findings, the Board was of the view that the applicant would not be at risk of harm if he is returned to India.

5)  Decision of the Judge

9.  In his decision dated 9 March 2021, the Judge dismissed the applicant’s leave application for judicial review because the applicant failed to identify any specific grounds for judicial review in support of his application.  The Judge held the decision of the Board was rational and the Court in general would not interfere with the finding of facts by the Board and the Director.

10.  In his decision dated 14 January 2022, the Judge held that the applicant did not provide any explanation to comply with the stipulated deadline.  In any event, the Judge had duly considered the merits of the applicant’s application and was of the view there is none in the intended review.  Thus, the application for extension of time to appeal was refused.

6)  Legal principles

11.  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

12.  The applicant was late for one day.  We will therefore focus on the merits of the intended appeal. 

(2)  Prospect of the intended appeal

13.  In the present summons, the applicant stated that the Judge failed to consider all applicable grounds of non‑refoulement claims and on the risk of violation of articles 2 and 22 of the Hong Kong Bill of Rights Ordinance, Cap. 383.  As for his supporting affirmation, the applicant repeated he was late due to insufficient funds.  In his written submissions, the applicant referred to authorities and principles in this area of the law without specific mention how they relate to his case. The applicant also made other allegations against the Board, such as it had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.

14.  On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.　An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  

15.  General and bare assertions without any specific particulars are not proper grounds of appeal.  In the present case, the Judge had considered all the relevant matters to the merits of the applicant’s case when he refused to grant leave for judicial review. 

8)  Disposition

16.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 3 March 2022.