RE SHAH MAZLOOM

CAMP 430/2022, [2023] HKCA 906

On Appeal From [2021] HKCFI 2269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 430 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1478 OF 2018 AND

HCAL NO. 2733 OF 2019 (CONSOLIDATED))

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(Consolidated pursuant to the Order of

Deputy High Court Judge Bruno Chan dated 30 December 2021)

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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 27 July 2018, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 1478/2018. No grounds for seeking relief was provided. Before this leave application could be dealt with by the Court, the applicant on 17 September 2019 filed another Form 86 under HCAL 2733/2019 again for leave to apply for judicial review. The applicant’s intended judicial review in both actions was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 28 June 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 22 November 2017 rejecting his non‑refoulement claim. The Court consolidated both actions. Deputy High Court Judge Bruno Chan refused to grant leave on 30 December 2021.

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 13 January 2022). Being out of time for four days, the applicant took out an application on 17 January 2022 before the Judge requesting an extension of time to appeal. The Judge on 14 September 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. 21 September 2022). On 18 October 2022, the applicant filed the present summons 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 and affirmation, 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 10 March 2014 and was arrested by the Police on the same day. He raised his non‑refoulement claim on 12 March 2014 alleging that he would be harmed or killed by certain gangsters because he refused to pay them protection money for his shop.

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.  Oral hearings were conducted by the Board on 14 and 18 May 2018. The Board dismissed the applicant’s appeal and the Director’s Decision was confirmed. The Board held that the applicant in his own words told the Board that what he said in his claim was a lie. The applicant then asked the Board to go ahead and make a decision on his case. The applicant stated that he wished to have a decision of the Board so that he could proceed to apply for judicial review because life was good in Hong Kong and he wanted to stay here. The Board then asked the applicant to confirm whether what the applicant was stating was that his claims of having faced extortion threats from gangsters and of his shop having been shot by gangsters was not true. The applicant again said it was ‘all lies’. Contrary to the applicant’s non-refoulement claim form which stated that his family was in Pakistan, the applicant told the Board that in fact his family was in Hong Kong and had been so for over 20 years. The Board therefore found that the applicant never received extortion or threats from gangsters in Pakistan. Gangsters never shot at the applicant’s shop. The Board found there was no real risk of harm if the applicant was to return to Pakistan.

5)  Decisions of the Judge

8.  In his decision dated 30 December 2021, the Judge held that the applicant provided no proper ground for leave for judicial review. There was no error of law or procedural unfairness.

9.  In his decision dated 14 September 2022, the Judge held that the applicant’s explanation for his delay was simply that he did not receive the decision without any further elaboration. This was not accepted by the Judge. The Form CALL-1 was sent to the applicant’s last reported address without being returned undelivered. The Judge held that the applicant did not put forward any proper grounds of appeal or particulars of error in the Judge’s 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 from the Judge’s decision to file an appeal. The applicant was late in making the application by four days. This was insignificant. We will focus on the merits of the applicant’s case.

(2)  Prospect of the intended appeal

12.  In the applicant’s summons and affirmation, the applicant provided no grounds in support of the intended appeal but simply stated he did not receive the decision.

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 extension of time for appeal.

15.  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

16.  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 18 October 2022.