RE SHAKHIL HUSSAIN

CAMP 305/2021

[2021] HKCA 2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 305 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1843 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 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 29 August 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 10 January 2018 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 20 August 2020 (three days late as August is summer vacation) before the Judge requesting an extension of time to appeal.  The Judge on 26 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 30 July 2021, the applicant filed the present summons within time 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 a Pakistan national.  He entered Hong Kong illegally from Mainland China in January 2016.  The applicant raised his non‑refoulement claim on 22 and 31 August 2016 on his fear that he would be harmed or killed by the Pakistani police because his twin brother committed a crime, and as his brother has disappeared, the police want to charge the applicant in order to close the case.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non‑refoulement claim on 10 January 2018.  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 12 January 2018.  An oral hearing was conducted on 4 July 2018.  The Board dismissed the applicant’s appeal on 29 August 2018 and the Director’s Decision was confirmed.  The Board held that in summary, because of multiple problems with the credibility of the applicant’s account, it concluded that the applicant’s claim was fabricated.  It did not accept that he was wanted by the police because they intended to frame him for a crime committed by his brother.  It did not accept that his relatives were detained, or that he was detained and tortured for a month, or that he fled his home and was pursued by the police because they wanted to charge and convict him of his brother’s crime in order to close the case.  The Board was not satisfied that he was at risk of harm.

5)  Decisions of the Judge

9.  In his decision dated 14 July 2020, the Judge held that the applicant failed to show any error on the part of the Board.    

10.  In his decision dated 26 July 2021, the Judge held that the applicant’s extension application did not specify his reason in support of his application.  Further, the applicant did not say in what respect the Board had erred.  

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 three days late.  In his affirmation, he did not explain the delay.  

13.  In the applicant’s summons and affirmation for a renewed application for extension of time to appeal, the applicant again stated certain background factual matter that had no relevance with his extension application.  In his written submissions, the applicant referred to authorities and statutory provisions without specifying how these rules relate to the particulars of his case.

(2)  Prospect of the intended appeal

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

15.  The Deputy Judge 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 does not 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 30 July 2021.