RE ABDUL RAHAMAN

CAMP 370/2021

[2022] HKCA 550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 370 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 506 OF 2019)

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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)  :

I. Renewed application for extension of time to appeal

1.  On 21 February 2019, 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 15 February 2019 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 30 November 2017 rejecting his non-refoulement claim. The application was brought within time.

2.  In his decision of 30 March 2021, Deputy High Court Judge P Li 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 within time, the applicant took out an application on 7 April 2021 before the Judge requesting for what it seems to be an extension of time to appeal.  The Judge on 31 August 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 3 September 2021, the applicant filed the present summons within time to make a further application to this Court for what it seems to be a renewed application for extension of time to appeal, although the application was within time. 

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.

II.  Factual background

6.  Briefly stated, the applicant is an Indian national.  He entered Hong Kong as a visitor but overstayed.  The applicant then raised a torture claim but was rejected.  He appealed against that decision to the Board but was rejected in June 2012.  The applicant raised his non-refoulement claim in July 2013 based on his fear that he would be harmed or killed by his girlfriend’s family because of religious disputes.

III.  The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 30 November 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 persecution but not torture.

IV.  The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board on 11 December 2017.  An oral hearing was conducted on 15 October 2018 to consider the appeal on all applicable grounds except torture.  The Board dismissed the applicant’s appeal on 15 February 2019 and the Director’s Decision was confirmed.

9.  The Board held that, on the basis of the applicant’s evidence and the inconsistencies contained therein, the applicant was not a witness of truth and that his account of his relationship with a girl named Munia and of attacks laid upon him by one of Munia’s brothers lacked all credibility and was a complete fabrication.  The Board concluded that the applicant currently does not have a relationship with Munia and that he would not be at risk of harm from the family members of Munia if he returns to India.  In any event, internal relocation is possible.

V.  Decisions of the Judge

10.  In his decision dated 30 March 2021, the Judge held that there was no right to free legal representation at all stages of the proceedings.  For language assistance, the applicant had help from the duty lawyer scheme and his Form 86 and affirmation for leave application was typewritten in English.  The Board found the applicant incredible and rejected his evidence.  The Judge rejected a new issue that was brought up last minute by the applicant.  There is no error of law or procedure.

11.  In his decision dated 31 August 2021, the Judge held that the applicant’s summons was unclear as to what he was seeking to apply for since his application throughout were within time.  The Court, nevertheless, treated his summons as an extension of time application.  The Judge held that he agreed with the Board’s decision.  The applicant was not a truthful witness.  The applicant’s relationship with Munia and the threats he received from the brother was unconvincing.  There was no merit in the intended judicial review. 

VI.  Legal principles

12.  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.

VII.  Analysis

1)  Length of delay and reasons for the delay

13.  Although the applicant initially did not need an extension of time to appeal, by now the time for appealing has expired and he has not filed his notice of appeal, he will need an extension of time to file his notice of appeal.  We will focus on the merits of his appeal.

2)  Prospect of the intended appeal

14.  In the applicant’s summons, affirmation and written submissions, the applicant stated that he had moved house and lost his documents so he needed time to go back to his country to collect the documents but he cannot do that either because it was dangerous.  The applicant has been in Hong Kong since 2011.  There has been ample time for him to collect whatever document from his home country that he needed and yet he did not do so.

15.  In our view, the applicant has failed to put forward proper grounds of appeal.  We agree with the Judge’s analysis that the applicant’s intended judicial review had no merit.  He 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 of the Judge, the intended appeal cannot have any prospect of success.  As the intended appeal is unarguable, it would be futile to give an extension of time. 

VIII.  Disposition

17.  Accordingly, we dismiss the applicant’s summons dated 3 September 2021.