RE HAIDER ZEESHAN

CAMP 64/2019

[2019] HKCA 984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 64 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 806 of 2018)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Lung (“the Judge”) given on 5 December 2018 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 6 March 2019.

2.  The applicant had filed an affirmation in support of his application.  Despite the directions given by the Registrar of Civil Appeals, he has not lodged any written submission.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 22 August 2016 and 2 August 2017 rejecting his non-refoulement claim, and the decision of the Torture Claims Appeal Board (“the Board”) dated 13 April 2018 dismissing his appeal against the decisions.

5.  Briefly stated, the applicant is a Pakistani national.  He entered Hong Kong on 12 October 2012 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 5 May 2014.  On 8 May 2014, he raised a torture claim based on his fear of being harmed or killed by his maternal uncle and the supporters of the Pakistan Muslim League (Newaz) arising out of a land dispute.  The applicant’s claim was set out in detail in the decisions of the Director and the Board.  It is not necessary to repeat them. 

6.  By his two decisions, the Director rejected the applicant’s claim on all applicable grounds.  The first decision covered the torture risk[1], the BOR 3 risk[2], and the persecution risk[3] grounds, and the further decision dealt with the BOR 2 risk[4] ground.

7.  The applicant’s appeal to the Board was heard on 22 February 2018.  For its decision dated 13 April 2018, the Board dismissed the appeal.   

8.  On 8 May 2018, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  At his request, an oral hearing was held on 9 November 2018 to hear the leave application.  By the CALL-1 From dated 5 December 2018, [2018] HKCFI 2647, the Judge refused to grant him leave to apply for judicial review. 

9.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 19 December 2018. On 10 January 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  On 6 March 2019, the Judge heard the application and dismissed it.  On 12 April 2019, the applicant filed a summons and an affirmation in this Court to renew his application for leave to appeal out of time.

10.  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) 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: see: 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, 22.01.2016). 

11.  By the time the applicant filed the summons in the lower court for leave to appeal out of time, he was late for about three weeks, which is not insubstantial.  According to the Judge’s written decision on refusal of leave to appeal (at [10]), the applicant stated at the hearing before the Judge that he received the Form CALL-1 about two or three weeks before Christmas and he was detained in the Immigration Centre about three days before Christmas.  Given that the Form CALL-1 was dated 5 December 2018, the applicant could not have received it three weeks before Christmas.  However, it is clear from what the applicant told the Judge that he received the Form CALL-1 before the expiration of the time for appealing.  In both the present summons and the supporting affirmation, the applicant has not provided any explanation for his delay.  However, what is more important is the prospect of the applicant’s intended appeal.

12.  The applicant’s grounds for leave to apply for judicial review are primarily threefold. First, he said he had not received the Director’s further decision.  Second, he complained that he could not understand the Director’s and the Board’s decisions, as he was not provided with translations of them.  Third, he criticised the Director’s use of country of origin information as being partial, selective and unfair.  For the reasons given in [10] to [24] of the Form CALL-1, the Judge concluded that the intended judicial review had no prospect of success and dismissed the application. 

13.  The applicant has not set out any proposed grounds of appeal in either the summons or the affirmation for the present application.  He merely asserted in the affirmation that he understood there was a good ground of appeal that was not necessarily considered at the application for leave to apply for judicial review, and he was informed the Director and the Board did not see the grounds to reverse their decisions.

14.  The focus of an appeal in this Court is the correctness of the decision of the first instance judge. Since the applicant has not identified in the Judge’s decision or reasons, the intended appeal cannot have any prospect of success.

15.  As the intended appeal is unarguable, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 12 April 2019.

16.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.