RE MUHAMMAD NASEER

CAMP 230/2020

[2021] HKCA 817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 230 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1394 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

1.1  On 16 July 2018, the applicant issued his application for leave for judicial review by Form 86.  

1.2  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 9 July 2018 dismissing his appeal against the decisions of the Director of Immigration (‘the Director’) dated 19 August 2015 and 7 February 2017 rejecting his non-refoulement claim.  The application was brought within time.

1.3  On 21 May 2020, Deputy High Court Judge Bruno Chan dismissed the applicant’s application.  

1.4  Being 12 days out of time, the applicant took out an application on 16 June 2020 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 2 November 2020 rejected the applicant’s application for an extension of time to appeal.  

1.5  On 4 December 2020, the applicant by summons together with a supporting affirmation issued a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragraphs 3 to 8.  He lodged his written submissions on 2 February 2021.

1.6  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

2.  Briefly stated, the applicant is a Pakistani national.  He came into Hong Kong illegally on 4 June 2011 and stayed here since.  He subsequently raised a non-refoulement claim on 6 July 2011 based on his fear that he would be harmed or killed by the people from Pakistan Muslim League (N) (‘PMLN’) because of his refusal to join them.

3)  The Director’s Decision and the Director’s Further Decision  

3.1  The Director decided against the applicant’s non-refoulement claim on 19 August 2015.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, as well as other statutory and convention rights against torture and persecution.

3.2  The Director decided against the applicant’s right to life claim on 7 February 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

4.  The applicant appealed against the Director’s Decision to the Board.  Oral hearing was conducted on 7 March 2017.  The Board dismissed the applicant’s appeal and affirmed both decisions of the Director on 9 July 2018.  In gist, the Board rejected the applicant’s claim upon a finding of a lack of credibility on the applicant.  The applicant failed to prove his case on all applicable grounds.

5)  Decisions of the Judge

5.1  In his decision dated 21 May 2020, the Judge held that the applicant provided no grounds in his Form 86, and the supporting affirmation merely repeated the applicant’s claim that his life was in danger without elaboration.  No error of the Board was shown.  

5.2  In his decision dated 2 November 2020, the Judge held that the applicant failed to provide good reason for his delay in appealing his decision.  There was no identification of any error in the Judge’s Decision.  

6)  Legal principles

6.  In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

(4)  Prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1  The applicant was 12 days late when he filed his summons in the lower court for extension of time to appeal.  The application’s explanation of not feeling well and that he was concerned about the pandemic was not a good reason for the delay.

(2)  Prospect of the intended appeal

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

7.3  In the present application, the applicant in his summons simply stated that he wanted to challenge the Judge’s decision.  No particulars or explanations were provided.

7.4  In the applicant’s supporting affirmation, he simply stated that he did not agree with the Judge.

7.5  In the applicant’s written submissions, the applicant repeated factual matters of his case.  He made various personal opinions in his submissions unsupported by evidence.  He stated that he wished to save his life.

7.6  The focus of an appeal in this Court is the correctness of the decision of the Judge.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)  Disposition

8.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 4 December 2020.