RE KHAN AHSAN

CAMP 513/2022, [2023] HKCA 977

On Appeal From [2022] HKCFI 1231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 513 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 360 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) :

1)  Renewed application for extension of time to appeal

1.  On 11 February 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 360/2019. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 14 January 2019 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 26 February 2018 rejecting his non‑refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 27 April 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 11 May 2022). Being out of time for over three months (since August 2022 was the Summer Vacation), the applicant took out an application on 19 September 2022 before the Judge requesting an extension of time to appeal. The Judge on 23 November 2022 rejected the applicant’s application for extension of time to appeal.

3.  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 (i.e. 30 November 2022). On 5 December 2022, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.

4.  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

5.  Briefly stated, the applicant is a Pakistan national. He entered Hong Kong illegally on 29 January 2016 and was arrested by the Police. He raised his non‑refoulement claim on 2 February 2016 alleging that he would be harmed or killed by supporters of the Pakistan Muslim League – Nawaz (‘PML‑N’) if he returns to Pakistan. He was a supporter of a rival political party the Pakistan Tehreek‑e‑Insaf (‘PTI’).

3)  The Director’s Decision

6.  The Director decided against the applicant’s non‑refoulement claim. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board. An oral hearing was conducted on 8 November 2018. The Board dismissed the applicant’s appeal on 14 January 2019 and the Director’s Decision was confirmed. The Board did not accept that the applicant was ever subjected to genuine threats which the PML‑N people ever intended to carry out. The Board accepted that the applicant supported the PTI, and he was harassed and threatened by PML‑N supporters. Minor damage might have been done, but the Board did not accept that the applicant suffered serious harm, including being cut with knives. He was not seriously threatened with death, torture or any form of serious harm. The PML‑N was not concerned with the applicant as a low level supporter. The Board did not accept that PML‑N would pursue the applicant, and that he only managed to avoid harm by staying at his home hiding. The Board also considered that internal relocation to other parts of his country is available to the applicant.

5)  Decisions of the Judge

8.  In his decision dated 27 April 2022, the Judge held that no valid ground for seeking relief was stated in the applicant’s Form 86 or affirmation, nor did he request for an oral hearing of his application. There was no error of law or procedural unfairness.

9.  In his decision dated 23 November 2022, the Judge held that the applicant’s explanation for his delay was not acceptable. The Form CALL‑1 was sent to the applicant’s last known address without being returned on the same day. The Judge held that significantly, there was no proper or valid grounds of appeal, or any particulars of error of in the decision. There was no prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6)  Legal principles

10.  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

11.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

12.  The Form CALL-1 decision was handed down on 27 April 2022. The deadline for the appeal was 11 May 2022. The applicant was over three months late when he filed his extension of time to appeal application on 19 September 2022. The applicant made a bare assertion that he did not get the decision, or that he did not agree with the decision, but the court record showed that the decision was mailed to him on the same day as Form CALL‑1 without being returned undelivered.

(2)  Prospect of the intended appeal

13.  In the applicant’s summons and affirmation, the applicant stated that he did not get High Court letter on time. He stated that he wanted to appeal. In his written submissions, he stated factual matters and broad and vague statements without specifying how they relate to his case, or where it was shown that that Judge was in error.

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 either leave for judicial review or extension of time for 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 filed on 5 December 2022.