RE MAHMOOD ASJAD

CAMP 364/2022, [2023] HKCA 734

ON APPEAL FROM [2022] HKCFI 1437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 364 OF 2022

(ON APPEAL FROM HCAL NO. 2338 OF 2018)

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J U D G M E N T

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

I. Renewed application for extension of time to appeal

1.  On 24 October 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 18 August 2017 which dismissed his appeal against the decisions of the Director of Immigration (the ‘Director’)  dated 8 March 2016 and 9 February 2017 rejecting his claim for non-refoulement protection.

2.  In his decision of 19 May 2022 (the ‘Decision’), Deputy High Court Judge KW Lung refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the Decision.  Being out of time, the applicant took out an application on 14 July 2022 before the Judge requesting an extension of time to appeal.  The Judge on 9 August 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 21 September 2022 (late for over five weeks), the applicant filed the present summons 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, 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.

II. Background

6.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 30 November 2013 and was arrested by the police on the same date.  He then raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a Syed Ijaz Sherazi due to difference in their political affiliations.

7.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of the Decision.

III. The Director’s Decision

8.  By two decisions dated 8 March 2016 and 9 February 2017, the Director rejected the applicant’s claim on all applicable grounds including his rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (the ‘Director’s Decisions’).

IV. The Board’s Decision

9.  The applicant appealed against the Director’s Decisions to the Board.  After a hearing held on 9 May 2017, the Board dismissed the applicant’s appeal on 18 August 2017 (the ‘Board’s Decision’).

10.  The Board found the applicant’s case to be implausible and rejected his claim of risk of harm from Syed.  The Board also found that the dispute with Syed was private in nature such that internal relocation was available to the applicant.  The Board therefore rejected the applicant’s claim and dismissed the appeal.

V. Decision of the Judge

11.  The applicant filed a Form 86 and a supporting affirmation on 24 October 2018.  In his affirmation and statement attached to the Form 86, he set out a number of grounds which have been summarised at [14] of the Decision.

12.  The applicant did not request an oral hearing before the Judge.  The Judge decided that it was appropriate to determine the application on paper without an oral hearing.

13.  The Judge began with the observation that the application was late.  In order to determine whether an extension of time should be granted, the Judge first considered the merit of the applicant’s case.  The Judge found that the proposed grounds did not assist the applicant and set out his reasons at [19] of the Decision.

14.  The Judge also considered the Director’s Decision and the Board’s Decision with rigorous examination and anxious scrutiny, but did not find any error of law or procedural unfairness, nor ground to challenge the decisions as Wednesbury unreasonable or irrational.  In the premises, the Judge was not satisfied that there was any realistic prospect of success in the applicant’s intended application for judicial review and accordingly refused to extend time for the applicant to apply for leave to apply for judicial review.

15.  In his decision of 30 August 2022, the Judge refused the applicant’s application for extension of time to appeal on the basis that the intended appeal had no realistic prospect of success.

VI. Legal principles

16.  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.

VII. Analysis

1)  Length of delay and reasons for the delay

17.  The applicant was late by six weeks when he filed his application for extension of time to appeal before the Judge.  His renewed application to this Court was again late by over five weeks.  The applicant merely claimed in his summons and written submission that he did not receive the Court decision and did not appeal.  Insofar as he meant he did not receive the Decision in time, this is not a valid explanation for his delay.  Nevertheless, we shall focus on the merits of this case.

2)  Prospect of the intended appeal

18.  The applicant did not provide any proposed grounds of appeal.  In his written submissions, he merely asserted that there were many ‘error of process’ without any elaboration.

19.  We agree with the Judge that there is no prospect of success in the 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.  General and bare assertions without any specific particulars are not proper grounds of appeal.

20.  Furthermore, the Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to extend time for the applicant to apply for leave for judicial review.

21.  In the present case, the applicant has not identified any proper grounds of appeal or errors committed by the Judge.  The intended appeal is completely devoid of merits.

VIII. 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 dated 21 September 2022.