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CAMP 84/2024, [2025] HKCA 54
On Appeal From [2021] HKCFI 1198
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 84 OF 2024
(ON AN INTENDED APPEAL FROM HCAL NO. 1466 OF 2018)
________________________
| RE: |
MOHSIN KHAN |
Applicant |
________________________
| Before: |
Hon Kwan VP and Cheung JA in Court |
| Date of Decision: |
9 January 2025 |
________________________
DECISION
________________________
Hon Cheung JA (giving the Decision of the Court) :
1) Renewed application for extension of time to appeal
1. On 25 July 2018, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 1466/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 13 July 2018 which 1) dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 15 May 2015 rejecting his non-refoulement claim, and 2) confirmed the two decisions of the Director dated 15 May 2015 and 5 December 2016[1].
2. Deputy High Court Judge Bruno Chan dismissed the application for leave to apply for judicial review on 30 April 2021.
3. The applicant by summons issued on 7 March 2024 sought an extension of time to appeal against the Judge’s decision. In his decision dated 9 April 2024, the Judge held that the application for extension of time for appeal was refused.
4. On 13 May 2024, the applicant filed the present summons 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 statement, we are of the view that it is appropriate to determine the present application on paper without a hearing.
2) Factual background
6. The applicant is a national of Pakistan. He alleged that he departed Pakistan for China via Thailand on 4 March 2009. He then entered Hong Kong illegally on 7 March 2009 from Shenzhen via boat. On 10 March 2009, he made a torture claim which was treated as a non-refoulement claim for assessment[2].
7. The basis of the applicant’s non-refoulement claim is that he would be harmed or killed by the Muttahida Qaumi Movemment because of his different political affiliation and because he was unable to pay protection money to them[3].
8. The background facts have been summarized in the decision of the Judge at [2] to [3].
3) The Director’s Decisions
9. The Director decided against the applicant’s non-refoulement claim on 15 May 2015. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’)[4].
10. The Director decided against the applicant’s right to life claim on 5 December 2016 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).
4) The Board’s Decision
11. The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)[5]. After a hearing held on 15 May 2017, the Board dismissed the applicant’s appeal on 13 July 2018 (‘the Board’s Decision’).
12. The Board’s finding is summarized in the decision of the Judge at [9], although we would add that the Judge was slightly inaccurate in holding on reasonable internal relocation as that has not been considered in the Board’s Decision (there was no need for its consideration)[6].
5) Decisions of the Judge
13. In his decision dated 30 April 2021, the Judge held that no proper ground for seeking relief or for a proper challenge was provided. The Judge could not find any error of law or procedural unfairness in the Board’s Decision[7].
14. In his decision dated 9 April 2024, the Judge held that the applicant simply asserted that the decision was unfair without providing proper grounds of appeal nor elaborations. The application for extension of time for appeal was refused[8].
6) Legal principles
15. 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
16. Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to take out an appeal from the date of the Form CALL-1 decision.
17. The Form CALL-1 was dated 30 April 2021. The deadline for applying for leave to apply for judicial review was 14 May 2021. The applicant was over 2 years and 9 months late when he took out a summons for extension of time to appeal. The applicant first said that he did not receive the decision in the mail, when according to Court record, the Form CALL-1 was sent to the applicant’s last known address without being returned undelivered. The applicant further said that in around 2021 due to the pandemic and also knowing that his enemies were still looking for him he decided not to go back and proceed with his intended appeal. The Judge held that changing one’s mind is not an excuse to prosecute proceedings with due diligence[9].
(2) Prospect of the intended appeal
18. In the applicant’s present summons, the applicant requests leave be granted on a new ground without explaining what that ground is. The applicant in his affirmation repeated that he never received the decision and he was not aware of the 14-day rule. It is trite that ignorance of the law is no excuse. In his written submission, he stated general non-refoulement legal principle and statutory authority without specifying how they relate to the particulars of his case.
19. In our judgment, the applicant does not have any prospect of success in his intended appeal.
20. 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 and when he refused to grant extension of time to appeal.
21. Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.
8) Disposition
22. 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 13 May 2024.
| (Susan Kwan) |
(Peter Cheung) |
| Vice-President |
Justice of Appeal |
Applicant, unrepresented, acting in person
[1] Form CALL-1 at [8];
[2] Director’s Decision 15 May 2015 at [1], [14];
[3] Ibid at [2];
[4] Director’s Decision at [16] to [18];
[5] Board’s Decision at [1], [2];
[6] According to the Board’s Decision at [73]-[75], the Board did not place internal relocation in its analysis because it was only necessary where a real risk of persecution was established. Persecution was not established in this case;
[7] Form CALL-1 at [10];
[8] Judge’s decision of 9 April 2024 at [6], [7];
[9] Judge’s decision of 9 April 2024 at [4], [5];
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