RE SULEMAN MUHAMMAD

CAMP 116/2025, [2026] HKCA 301

On Appeal From [2023] HKCFI 2924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 116 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 337 OF 2019)

_______________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 27 February 2025 ([2025] HKCFI 651) (“the EOT Decision”), refusing to grant extension of time to the applicant to appeal against the Judge’s earlier decision dated 14 November 2023 ([2023] HKCFI 2924) (“the Leave Decision”). 

2.  By the Leave Decision, the Judge refused to grant the applicant extension of time and dismissed his application for leave to apply for judicial review (“the Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 18 August 2017 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 9 September 2016 and 20 July 2017, refusing his non-refoulement claim.

3.  The applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision: see [1] ‑ [11] of the Leave Decision.  The Judge has set out in detail the grounds advanced by the applicant in support of the Leave Application and his reasons for refusing the Leave Application: see [12] ‑ [22] of the Leave Decision.  The Judge has also set out in detail his reasons for refusing the extension of time to appeal application taken out by the applicant: see [2] ‑ [7] of the EOT Decision.  We will not repeat those details herein.

4.  By the Summons filed on 16 June 2025, the applicant sought to appeal against the EOT Decision and referred to an attachment of eight pages as grounds in support of his application.

5.  By the supporting affirmation filed on 16 June 2025, the applicant claimed that the Judge had failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case, which led to an unfair and unjust outcome in rejecting his intended judicial review application.  In the 8-page attachment exhibited to his supporting affirmation, the applicant complained that his life would be in danger and he did not have the opportunity to make his case to the Director.  The Board also failed to apply the requisite high standard of fairness.  The Director, the Board and the Court all erred in law as his life would be in danger upon refoulement.  He also asserted that he did not have any language and legal assistance in preparing the court documents.

6.  The applicant further lodged his written submissions on 27 June 2025.  In those submissions, he reiterated the same assertions previously made in the above-mentioned attachment.

7.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court (Cap 4A) (“the RHC”).

Discussion

8.  Following the approach this court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

10.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

12.  As noted by the Judge at [2] of the EOT Decision, the applicant first applied for extension of time to appeal before the Judge by way of a summons filed on 2 December 2024.  By then, he was late for over 11 months in taking out his application, which amounted to extremely substantial and inordinate delay: [4] of the EOT Decision.  He also gave no reason, let alone good reason, to explain the substantial delay.

13.  More importantly, his intended appeal has no substance.  His allegations are all vague, bare and general in nature. His complaints are mainly directed at the Board’s Decision and he has failed to specifically identify errors in the Leave Decision.  His submissions are essentially a repeat of those submissions advanced before the Judge, which the Judge had duly considered and rejected: see [12] ‑ [22] of the Leave Decision.  It is trite as a matter of law that an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge: Nupur Mst v Director of Immigration, supra, at [14(2)].  The applicant merely disagreed with the Judge’s observations, but failed to point out with specific particulars how the Judge had erred in law or on the facts.  Clearly, his assertions are not proper grounds of appeal and must fail.

14.  Regarding his complaints on the lack of language and legal assistance, we note that all of the court documents filed by the applicant in this appeal as well as before the Judge are in English.  Clearly, the applicant was able to obtain assistance in English.  It is in any event trite that a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abba s[2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  The applicant also failed to demonstrate any prejudice suffered by him.  There is no substance in his complaints.  Plainly, there is no basis to disturb the Leave Decision.

15.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

16.  The reapplication for extension of time to appeal is refused, and the applicant’s summons taken out on 16 June 2025 is dismissed.