RE JAVED UMAIR

CAMP 18/2022

[2022] HKCA 496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 18 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2876 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 14 December 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 26 November 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 26 March 2018 rejecting his non-refoulement claim. 

2.  In his decision of 6 August 2020, Deputy High Court Judge K. W. 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, the applicant had 14 days to appeal against the decision.  Being out of time, the applicant took out an application on 20 October 2020 before the Judge requesting an extension of time to appeal.  The Judge on 28 October 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 12 January 2022, 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 made out of time by more than two months.

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.

2)  Factual background

6.  Briefly stated, the applicant is a Pakistani national. 

He claimed that if refouled, he would be harmed or killed by his enemies from a land dispute, and that his enemies had a close connection with the political party Pakistan Muslim League (Noon group).  It was said that between 2013 to June 2015, he was threatened and assaulted by his enemies on a number of occasions and he had to hide himself in various places of his friends.  He left Pakistan on 25 June 2015, and came to Hong Kong illegally on 1 July 2015 and was arrested by the Police.  He filed the non-refoulement claim on 5 September 2015.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 26 March 2018.  The decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

8.  The applicant appealed against the Director’s decision to the Board.  An oral hearing was conducted on 4 and 10 July 2018.  The Board dismissed the applicant’s appeal on 26 November 2018, and the Director’s decision was confirmed.  In sum, the Board did not accept the applicant’s evidence in support of his claim, i.e. that he was threatened or assaulted and that he had to move from place to place to avoid his enemies. There was no risk that he would be subjected to harm as he alleged if he returned to Pakistan.  Furthermore, state protection and internal relocation should be options available to the applicant.  On such bases, the Board confirmed the Director’s dismissal of the applicant’s claim based on BOR 2, BOR 3, persecution and torture risks.

5)  Decision of the Judge

9.  In his decision dated 6 August 2020, the Judge held that there was no error of law or procedural unfairness in the Board’s decision.

10.  In his decision dated 28 October 2021, the Judge dismissed the applicant’s application for extension of time to appeal.  Focusing on the merits, the Judge held that the applicant did not put forward any valid grounds of appeal.

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.  We will focus on the merits of the intended appeal. 

(2)  Prospect of the intended appeal

13.  The applicant did not identify any grounds in support of the intended appeal.  In the applicant’s affirmation in support, the applicant simply stated that he wanted to challenge the decision of the Judge below.  The applicant did not file any written submission. 

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 leave for judicial review and extension of time to appeal. 

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 dated 12 January 2022.