RE HUSSAIN SHABEER

CAMP 266/2021

[2022] HKCA 213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 266 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1840 OF 2018)

________________________

________________________

________________________

D E C I S I O N

________________________

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

1)  Renewed application for extension of time to appeal

1.  On 5 September 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 22 June 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 19 January 2017 rejecting his non-refoulement claim. The application was brought within time.

2.  In his decision of 14 July 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 3 August 2020 before the Judge requesting an extension of time to appeal. The Judge on 12 July 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 21 July 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 two days.

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 Pakistan national. He came into Hong Kong on 29 September 2010 but was refused entry. He made a torture claim which was rejected in 2010. On 28 October 2016, the Immigration Department decided that the applicant was eligible to make a subsequent claim for non-refoulement. The applicant raised a non-refoulement claim based on his fear that he would be harmed or killed by his brother-in-law (who was politically powerful) because he married his sister without his approval, as his sister converted from Christian to Islam in order to marry the applicant.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 19 January 2017. 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 27 April 2018. The Board dismissed the applicant’s appeal. He claimed the government and police would assist the brother-in-law to force his wife to change her religion from Islam to Christianity, but COI shows this is not supported by the Muslim religion. It was incredible that the brother-in-law was alleged to have strong connections throughout Pakistan.

5)  Decisions of the Judge

9.  In his decision dated 14 July 2020, the Judge held that evaluation of evidence was a matter for the Director and the Board. The applicant was unable to show that he had a reasonable prospect of success.

10.  In his decision dated 12 July 2021, the Judge held that the applicant did not explain his delay in making his application. As for merits, the applicant was unable to say in what respect had the Board erred in its decision. The Judge refused to grant extension of time to 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 applicant’s intended appeal.

(2)  Prospect of the intended appeal

13.  In the applicant’s affirmation, he complained that he was unable to understand the Court’s decision and the Board’s decision because although he understands English, these decisions were complicated with legal terms. He also did not have legal assistance. In his written submissions, he further complained that there was a lack of arrangements from the Court to help him understand the decisions and so there was a wrongful exercise of case management powers.

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 extension of time to appeal.

16.  For the complaints regarding lack of language and legal assistance, and wrongful exercise of case management powers, none of these matters were raised before the Deputy Judge. In fact, according to the Decision of the Judge, the applicant stated before the Court that he had nothing to comment on the Board’s findings, and confirmed that he had been treated fairly before the Board and the Director.

17.  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

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 21 July 2021.