RE KHAN MUHAMMAD NADEEM

CAMP 346/2023, [2024] HKCA 755

On Appeal From [2023] HKCFI 1328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 346 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 853 OF 2019)

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DECISION

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

1)  Renewed application for extension of time to appeal

1.  On 27 March 2019, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 853/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 18 March 2019 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’)  dated 12 June 2018 rejecting his non-refoulement claim.  Deputy High Court Judge KW Lung refused to grant leave on 30 May 2023.

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 13 June 2023).  Being out of time for over 1.5 months, the applicant took out an application on 24 August 2023 before the Judge requesting an extension of time to appeal.  The Judge on 20 October 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 15 November 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

4.  Pursuant to the directions of the Registrar of Civil Appeals dated 15 November 2023, the applicant was to lodge written submissions on or before 29 November 2023 but the applicant failed to do so.  The applicant has thereby abandoned his right to rely on written submissions.

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 and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing based on the available documents.

2)  Factual background

6.  The applicant is a Pakistan national.  He illegally entered Hong Kong from Mainland China on 5 March 2016[1].  He raised his non-refoulement claim on 12 October 2016[2].

7.  The basis of the applicant’s claim is that he fears he would be harmed or killed by Masood and Rafaqat, chairman of Pakistan Muslim League (N)  (‘PMLN’), and PMLN members in District Attock because he had participated in activities of the rival Pakistan Tehreek-e-Insaf (‘PTI’)  as a supporter[3].

8.  The background facts have been summarized in the decision of the Judge at [5].

3)  The Director’s Decision

9.  The Director decided against the applicant’s non-refoulement claim on 12 June 2018.  The Decision covered Article 3 of the Hong Kong Bill of Rights (‘BOR 3’) (torture/inhuman treatment), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as other statutory and convention rights against torture and persecution[4] (‘the Director’s Decision’).

4)  The Board’s Decision

10.  An oral hearing was conducted by the Board on 18 January 2019.  The Board dismissed the applicant’s appeal/petition, and confirmed the Director’s decision.  The Board’s findings are summarized in the Judge’s decision at [9].  

5)  Decisions of the Judge

11.  In his decision dated 30 May 2023, the Judge held that the Court will not usurp the fact finding power of the Director and the Board unless it could be shown that there was any error of law.  The Board did not accept the applicant’s evidence on the facts of his case.  There was no error of law or procedural unfairness[5].  

12.  In his decision dated 20 October 2023, the Judge held that the applicant failed to show that there is any realistic prospect of success in the intended appeal.  The Judge repeated that the Board having considered the applicant’s evidence found that the applicant’s case was not believable, state protection was available and internal relocation was possible.  The application for extension of time for appeal was refused[6].

6)  Legal principles

13.  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

14.  Under Order 53, rule 3(4)  of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge. 

15.  The Form CALL-1 decision was handed down on 30 May 2023.  The deadline for the appeal was 13 June 2023.  The applicant was over 1.5 months late when he filed his application for extension of time to appeal on 24 August 2023.  The applicant’s explanation that he did not receive the decision, and that he was told by the Immigration Department  to go to the High Court, are points without merit, as the Judge has already stated that the according to Court record, the decision was sent to the applicant’s last known address on 30 May 2023 without returning undelivered[7].

(2)  Prospect of the intended appeal

16.  In the applicant’s summons, the applicant stated the following :

‘ The High Court did not grant my leave. I was not happy and I had some objection. I had no chance to appeal. As I did not get the High Court Judgment.’

17.  The applicant’s affirmation annexed copies of three court documents which are the Form CALL-1, the Judge’s decision of 20 October 2023 and its sealed order.  The affirmation further stated the following :

‘ I want to appeal aginst the decision of the High Court Judgment. Very sorry to say I failed the appeal as I did not get the High Court Judgment. Attached “A”. Please permit me to appeal.’

18.  As can be seen, no grounds were stated in the applicant’s documents for the intended appeal.

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

20.  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.

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

8)  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 filed on 15 November 2023.