RE KHAN TAHIR

CAMP 81/2023, [2024] HKCA 94

On Appeal From [2022] HKCFI 2496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 81 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2124 OF 2018)

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DECISION

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

1) Renewed application for extension of time to appeal

1.  On 4 October 2018, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 2124/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 7 September 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 23 November 2016 rejecting his non-refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave on 12 August 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 14 September 2022). Being out of time for around one month, the applicant took out an application on 17 October 2022 before the Judge requesting an extension of time to appeal. The Judge on 30 January 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 22 February 2023, 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, 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 from the Mainland on 8 January 2016. He raised his non-refoulement claim on 11 January 2016 alleging that he would be harmed or killed by one Abbasi and members of a political group as he knew of an extra-marital relationship Abbasi had with one Jabeen.

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), BOR 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.  An oral hearing was conducted by the Board on 9 January 2018 where the applicant was absent. The Board dismissed the applicant’s appeal/petition. The Board held that from the events the applicant described, his fear was purely based on his own speculation and not supported by facts. The applicant was never inflicted with any alleged injuries. From the incidents that the applicant described, it is beyond doubt that Pakistan has a fair judicial system, as the applicant was acquitted by the Court there on some false charges relating to Abbasi and a previous incident.

5) Decisions of the Judge

8.  In his decision dated 12 August 2022, the Judge held that no ground for seeking relief was stated in the applicant’s Form 86 or affirmation, nor did he seek for an oral hearing. There was no error of law or procedural unfairness.

9.  In his decision dated 30 January 2023, the Judge held that the applicant’s explanation for his delay was not acceptable. The Court record showed that the decision was sent to the applicant’s last reported address without being returned undelivered. In the absence of further explanation from the applicant to corroborate his assertion that he was only later informed of the decision from an immigration officer, the Judge was not satisfied there was good reason for the delay. The Judge held that importantly, the applicant did not put forth any valid grounds of appeal. 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 12 August 2022. The deadline for the appeal was 14 September 2022. The applicant was about one month late when he filed his extension of time to appeal application on 17 October 2022. The applicant had not provided any proper explanation that he only received the decision from the Immigration Department.

(2) Prospect of the intended appeal

13.  In the applicant’s summons and affirmation, they do not contain any proper ground of appeal. The applicant simply stated bare allegations and factual matters. In the applicant’s written submissions, the applicant repeated factual matters that are within the province of the Board.

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 leave for judicial review.

16.  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

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 22 February 2023.