RE FARMAN

CAMP 526/2022, [2023] HKCA 978

On Appeal From [2022] HKCFI 915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 526 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2240 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 15 October 2018, the applicant issued his application for leave for judicial review by Form 86 in HCAL 2240/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 9 October 2018 which dismissed his appeal against the decisions of the Director of Immigration (‘the Director’) dated 20 April 2016 and 3 November 2017 rejecting his non‑refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 1 April 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 19 April 2022, since 15 April to 18 April 2022 were public holidays). Being out of time for about 22 days, the applicant took out an application on 11 May 2022 before the Judge requesting an extension of time to appeal. The Judge on 19 October 2022 rejected the applicant’s application for extension of time to appeal.

3.  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 (i.e. 26 October 2022). On 8 December 2022, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.

4.  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

5.  Briefly stated, the applicant is a Pakistan national. He entered Hong Kong illegally on 21 March 2012. He raised his non‑refoulement claim on 3 November 2013 alleging that he would be harmed or killed by local supporters of the political party Pakistan Muslim League (N) (‘PMLN’) as he supported their rival Pakistan Tehreek‑e‑Insaf (‘PTI’).

3)  The Director’s Decision

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

7.  The Director decided against the applicant’s right to life claim on 3 November 2017 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

8.  The applicant appealed against the Director’s decisions to the Board. An oral hearing was conducted on 19 July 2018. The Board dismissed the applicant’s appeal and the Director’s decisions were affirmed. The Board held that the different versions of events that the applicant provided before the Director and the Board respectively were so stark and incompatible with each other that they could not stand together and fatally damaged the credibility of the applicant to the extent that his claims could not be accepted at all. There was no credible evidence to show that there was any risk of harm if he was to return to Pakistan. The applicant in fact conceded before the Board there was no risk of harm to return to Pakistan.

5)  Decisions of the Judge

9.  In his decision dated 1 April 2022, the Judge held that the grounds of intended judicial review provided by the applicant were all broad and vague assertions without any particulars or specifics or elaborations as to how they applied to his case. There was no error of law or procedural unfairness.

10.  In his decision dated 19 October 2022, the Judge held that the Form CALL-1 was sent to the applicant’s last known address without being returned on the same day. The Judge held that there were no proper or valid grounds of appeal, or any particulars of error of in the decision. There was no prospect of success in the intended appeal. The application for extension of time for 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 about 22 days late when he filed his extension of time to appeal application in the court below on 11 May 2022. The applicant made a bare assertion on paper that he was late because of the preceding holiday period. The court record showed that the decision was mailed to him on the same day as Form CALL-1 without being returned undelivered.

(2)  Prospect of the intended appeal

13.  In the applicant’s affirmation, the applicant stated that he did not have legal advice, but that was not true as he was legally represented at an interview with the Director and was assisted by an interpreter. He stated that he had a good ground of appeal which was not considered in the court below but he did not specify what this ground was. He repeated that he did not receive the decision in time when the court record provided otherwise. In his written submissions, the applicant cited case authorities and statute that are used in non‑refoulement cases without specifying how they relate to his case.

14.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

15.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 8 December 2022.