RE AHMAD BILAL

CAMP 326/2021

[2021] HKCA 2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 326 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1686 OF 2018)

____________________

____________________

____________________

D E C I S I O N

____________________

Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.  On 20 August 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 6 August 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 6 February 2018 rejecting his non-refoulement claim. The application was brought within time.

2.  In his decision of 9 June 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 26 June 2020 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 6 August 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 and affirmation, 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 September 2015.  The applicant raised his non‑refoulement claim in August 2016 on his fear that he would be harmed or killed by Riaz due to a land dispute and that he would be harmed or killed by Riaz’s contacts in his political group because the applicant is a supporter of an opposing political group.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non‑refoulement claim on 6 February 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 20 February 2018.  An oral hearing was conducted on 25 May 2018.  The Board dismissed the applicant’s appeal on 6 August 2018 and the Director’s Decision was affirmed.  The Board held that the applicant provided a fake death certificate of his father to support his claim.  The Board found that the applicant’s father was not killed by Riaz as a result of a land dispute, and therefore Riaz was found not to have gone to prison for that.  The Board also did not accept Riaz assaulted the applicant after being released from prison.  The alleged assault by Riaz against the applicant did not occur.  The applicant was not framed by the police with the death of a policeman.  The applicant did not pay a bribe to have his passport issued.  The applicant does not face a real chance of harm in Pakistan.

5)  Decisions of the Judge

9.  In his decision dated 9 June 2020, the Judge held that regarding the applicant’s complaints on the country of origin information and state acquiescence, they were his own opinions without particulars.  The Judge further held that the applicant’s complaints on the requirement of the Board to ensure high standard of fairness was, in fact, his misconception of the burden of proof.  There was no error of law in the Board’s decision.    

10.  In his decision dated 26 July 2021, the Judge held that the applicant did not deal with the appeal on time.  Focusing on the merits, the Judge referred to the Board’s Decision and repeated the findings that in general the applicant’s evidence was not credible, and there was a lack of any real chance of harm if he was to return.  There was no evidence that the Board had erred in its decision.

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’s summons for a renewed application for extension of time to appeal was filed on 26 June 2021.  It was filed three days late.  We will focus on the merits of the intended appeal.

(2)  Prospect of the intended appeal

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

14.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.  In the applicant’s summons filed on 6 August 2021, he stated he was to advance a new ground without giving any particulars as to what that ground was.  In his affirmation, he stated that ‘is a good ground of appeal that was not necessarily considered at the stage of applying for judicial review’.  These are bare assertions without specifics.

15.  In our view, 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

16.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, the applicant’s summons dated 6 August 2021 is dismissed.