RE ASHRAF MUHAMMAD

CAMP 557/2021

[2022] HKCA 647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 557 OF 2021

(ON APPEAL FROM HCAL NO. 1755 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)  :

I.  Renewed application for extension of time to appeal

1.  On 27 August 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 16 August 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 15 May 2017 rejecting his non-refoulement claim.  The applicant then applied to withdraw his leave application which was granted on 7 March 2019.  However, he later applied to re-instate his leave application.  Deputy High Court Judge KW Lung on 26 November 2019 allowed him to re-instate his leave application.  An oral hearing was fixed on 26 November 2020 but the applicant did not show up at that hearing.  The Judge then ordered the leave application to be dealt with on paper in the applicant’s absence.

2.  In his decision of 12 January 2021, Deputy High Court Judge CP Pang refused to grant leave to the applicant to apply 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 2 March 2021 before Deputy High Court Judge P Li requesting an extension of time to appeal.  Judge Li on 11 November 2021 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 13 December 2021, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.  The application was late by over two weeks.

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.

II.  Factual background

6.  The applicant is a national of Pakistan.  He had previously entered Hong Kong in 2001 and overstayed.  He lodged a torture claim but withdrew it.  He later returned to Pakistan.  On 15 February 2016, he surrendered to the Immigration Department and claimed that he entered Hong Kong illegally on 25 December 2015.  He lodged his non-refoulement claim on the basis he would be harmed or even killed by three men whom he provided information to the Police which led to their arrest.  

7.  The details of the applicant’s claim have been summarized by Judge Pang at [2] and [3] of the CALL-1 Form.

III.  The Director’s Decision

8.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 15 May 2017.  The decision covered the applicant’s 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. 

IV.  The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board and attended an oral hearing on 12 April 2018 before the Board.  The Board found the applicant’s case incredible and did not believe his story.  The Board found the events alleged by the applicant were mostly based on hearsay and difficult to believe.  There was also no reliable evidence that the applicant suffered physical or mental suffering.  He never informed the authority of his plight.  The Board further found that state protection was available and it was not unreasonable for the applicant to relocate elsewhere in Pakistan.  The Board dismissed the applicant’s appeal against the Director’s decisions on 16 August 2018.

V.  Decisions of Judge Pang

10.  In his decision dated 12 January 2021, Judge Pang did not find any error of law, irrational findings, or procedural unfairness in the decision of both the Director and the Board.  The Judge also stated the applicant was unable to show that he had a reasonable prospect of success in his leave application.  Judge Pang also dismissed a summons issued by the applicant on 5 October 2020 seeking an extension of time to appeal.  Judge Pang held this summons was misconceived because his application for leave to apply for judicial review had by then not yet been decided.  

11.  In his decision dated 11 November 2021, Judge Li held that the Court’s decision was sent to the applicant at his last known address without being returned undelivered.  As for merits, the Judge agreed with the views of the Board and Judge Pang. 

VI.  Legal principles

12.  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

13.  The applicant was late by about five weeks when he filed his application for extension of time to appeal.  The applicant only explained in his summons and affirmation that he failed to receive the Court’s decision.  No other explanation was given and the Court record showed that the decision was sent to his last known address.  We agree with Judge Li’s analysis that the judgment was properly sent and had not been returned undelivered.

2)  Prospect of the intended appeal

14.  We will turn to the merits of the intended appeal.

15.  In the applicant’s summons and affirmation, the applicant simply stated that his time to appeal was over.  In his written submissions, the applicant repeated his allegation that he would be harmed if he was returned to Pakistan.

16.  In our view, the applicant does not have any prospect of success in his intended appeal.  Judge Pang had considered all the relevant matters including the merits of the applicant’s case when he refused to grant extension of time for leave for judicial review and refused his leave application.

17.  The applicant has not identified any error of law or procedural unfairness in Judge Pang’s decision, and the intended appeal does not have any prospect of success.

VIII.  Disposition

18.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons dated 13 December 2021.