RE RAHEES BAVER KHAN

CAMP 136/2019

[2019] HKCA 1255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 136 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 381 of 2018)

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JUDGMENT

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

1.  By summons filed on 19 June 2019, the applicant applied for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 5 June 2019. By that order, the Judge refused to extend the time for the applicant to appeal his decision given on 28 February 2019 refusing to give leave to apply for judicial review. We believe the applicant is in fact seeking leave from this Court to appeal out of time against the Judge’s decision of 28 February 2019, and we have treated his application as a renewed application for leave to appeal out of time.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of his application.

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, the affirmation and the written submission, 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 decision of the Director of Immigration (“the Director”) dated 21 April 2017 rejecting his non-refoulement claim, and the decision of the Torture Claims Appeal Board (“the Board”) dated 26 February 2018 dismissing his appeal against the Director’s decision.

5.  The applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the police on 2 August 2009. He later raised a non-refoulement claim based on his fear of being harmed or killed by his village head arising out of a land dispute.

6.  By his decision, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 3 November 2017, during which the applicant had answered questions put by the Board.  By its decision dated 26 February 2018, the Board dismissed the appeal.  Principally the Board did not find the applicant’s claim credible as there were serious problems with his account and evidence.

8.  On 8 March 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  At his request, the application was listed for an oral hearing before the Judge.  By the CALL-1 Form dated 28 February 2019, [2019] HKCFI 184, the Judge refused to grant leave to apply for judicial review and dismissed the application.

9.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 14 March 2019.  On 29 March 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The Judge heard the application on 9 May 2019, and by his decision handed down on 5 June 2019, [2019] HKCFI 1333, dismissed the application.  The applicant filed the present summons on 19 June 2019.

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 by about two weeks.  The delay was not insubstantial.  In the supporting affirmation filed in the court below, the applicant said that the letter enclosing the decision was sent to him on 15 March 2019.  The Judge did not accept this because the envelope was not exhibited to the affirmation, and the court’s record showed that the letter was sent to applicant on 28 February 2019.  We are of the view that the Judge was entitled, on the materials before him, to come to this view.  However, what is more important is the prospect of the applicant’s intended appeal.

12.  The applicant did not set out any ground of appeal in his summons.  His supporting affirmation stated that he understood “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, and “he was informed that [the Director] and the Board did not see the grounds to reverse their decisions.” 

13.  In the written submission, the applicant argued that: (1) high standards of fairness are required considering that the applicant’s life is in jeopardy, his fundamental right not to be subjected to torture is at stake and the decision has the effect of finally disposing of his claim rendering him liable to be removed; (2) the Board acted in a procedurally unfair manner in dealing with his case without properly assessing his credibility; (3) an administrative body’s decision could be set aside if it is Wednesbury unreasonable; and (4) under section 37ZT of the Immigration Ordinance, Cap. 115, the Board in dealing with late filing of notice of appeal may consider the reasons stated in the application and the accompanying supporting documents, as well as any other relevant matters.

14.  In our view, the applicant’s intended appeal has no prospect of success.  The arguments in the written submission are general legal propositions and assertion.  It has not been shown how the legal propositions relate to the applicant’s case.  While it complains that the Board acted unfairly, no particulars are given.  Importantly, the arguments do not point to any error in the Judge’s decision and reasons.  They do not amount to viable grounds of appeal.

15.  Given that the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 19 June 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.