RE SHAIKH SAJED

CAMP 470/2021

[2022] HKCA 153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 470 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2306 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 23 October 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 12 October 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 14 July 2017 rejecting his non-refoulement claim. 

2.  In his decision of 19 January 2021, Deputy High Court Judge C P Pang 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 14 April 2021 (late by over two months)  before Deputy High Court Judge P Li requesting an extension of time to appeal.  Judge P Li on 9 September 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 Judge P Li’s refusal, make a renewed application to this Court for extension of time to appeal.  On 19 October 2021 (out of time for over one month), the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

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 an Indian national.  He last arrived in Hong Kong in June 2015 as a visitor but overstayed.  The applicant raised his non-refoulement claim in July 2015 on his fear that he would be harmed or killed by members of a political group, the All India Trinamool Congress (‘TMC’).  He is a member of the rival Communist Party of India (Marxist)  (‘CPIM’).

3)  The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 14 July 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 on 27 July 2017.  An oral hearing was conducted on 21 September 2018.  The Board dismissed the applicant’s appeal on 12 October 2018 and the Director’s Decision was confirmed.  The Board did not accept the case of applicant.  It did not accept that he was threatened, harassed, beaten or physically harmed.  It did not accept that he was a member of his alleged political group.  It held that the applicant was not truthful in his claims and had manufactured his entire claim.

5)  Decisions of Judge C P Pang and Judge P Li

9.  In his decision dated 19 January 2021, Judge C P Pang held that the applicant did not set out any proper grounds in his Form 86 and affirmation.  He held that the Board disbelieved the applicant based on major inconsistencies in his evidence and on primary facts.  There was no factual basis in support of any applicable grounds.  

10.  In his decision dated 9 September 2021, Judge P Li held that the court’s decision was sent to the applicant at his last known address without being returned undelivered.  Importantly, the applicant was found by the Board to be not truthful.

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 late by over two months when he filed his application for extension of time to appeal.  The applicant only explained in his summons and affirmation that he received the court’s decision on 12 April 2021 when according to the court record the decision was sent to his last known address on 19 January 2021.  He did not explain the circumstances when he became aware of the decision on 12 April 2021.  We agree with Judge P Li’s analysis that the judgment was properly sent and had not been returned undelivered.

(2)  Prospect of the intended appeal

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

14.  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 needed to save his life, and he did not receive the court’s decision so he could not appeal.

15.  In our judgment, the applicant does not have any prospect of success in his intended appeal.  Judge C P Pang had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decision, the intended appeal cannot 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 19 October 2021.