RE SHAKEEL MUHAMMAD

CAMP 121/2019

[2019] HKCA 1271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 121 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 473 OF 2017)

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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

1.1.  On 1 August 2017, the applicant issued his application for leave for judicial review by Form 86.

1.2.  The applicant’s intended judicial review was against the Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 14 July 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 2 February 2016 rejecting his non‑refoulement claim.  The application was filed within time.

1.3.  On 9 February 2018, Deputy High Court Judge Woodcock (‘Judge Woodcock’) dismissed the applicant’s application.

1.4.  Under Order 53, rule 3(4) of the Rules of the High Court, the 14-day period for the applicant to appeal against the decision of Judge Woodcock expired on 23 February 2018.  Being more than one year out of time, the applicant took out an application on 25 March 2019 before the court of first instance requesting essentially for an extension of time to appeal.  Deputy High Court Judge Bruno Chan (‘Judge Chan’) on 5 June 2019 rejected the applicant’s application for an extension of time to appeal.  On 10 June 2019, the applicant by summons took out a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paras 3 to 8.  The applicant failed to file any written submission for his application.

1.5.  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

2.  Briefly stated, the applicant is a Pakistani national.  He claimed to have entered Hong Kong illegally on 30 November 2013.  He was arrested on the same day.  He subsequently raised a non‑refoulement claim based on his fear that he would be harmed or killed by his uncle, one Khan and his men due to a dispute over land owned by his father.

3)   The Director’s Decision and the Director’s Further Decision 

3.1.  The Director decided against the applicant’s non‑refoulement claim on 2 February 2016.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2.  By a Further Decision of the Director dated 9 February 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant, and decided against the applicant.

4)  The Board’s Decision

4.  The applicant appealed against the Director’s Decision to the Board on 12 February 2016.  The oral hearing was conducted on 21 February 2017.  The Board dismissed the applicant’s appeal on 14 July 2017.  In gist, the Board rejected the applicant’s claim based on the applicant’s alleged case not fulfilling the minimum level of severity.

5)  Decision of Judge Woodcock

5.  In respect of the application for seeking leave to apply for judicial review, the Judge heard the applicant in Court and considered his evidence.  Judge Woodcock found that the applicant relied on eight grounds in his affirmation for judicial review, but most grounds contain no particulars.  No error of law or procedure was found.  The Judge refused to grant leave.

6)  Decisions of Judge Chan

6.  The application for an extension of time to appeal was listed for hearing on 26 April 2019.  Judge Chan held that the delay was very substantial or excessive.  He held that the applicant failed to provide any good reason for such a substantial delay.  In any event, he found no merit in the applicant’s extension application. 

7)  Legal principles

7.  In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

(4)  Prejudice to the putative respondent if extension of time was granted.

8)  Analysis

(1)    Length of delay and reasons for the delay

8.1.  The applicant was more than one year late when he filed summons in the court below for extension of time to appeal.  

8.2.  In our view, the length of delay for his first extension of time to appeal application was very substantial.  Therefore, the intended appeal must satisfy real prospect of success before an extension of time will be granted : Re Ansar Muhammad [2018] HKCA 227.

(2)    Prospect of the intended appeal

8.3.  In our judgment, the applicant does not meet the real prospect of success threshold.  Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.

8.4.  In the present application, the applicant directed the Court’s attention to his supporting affirmation.  In his supporting affirmation, there was nothing more but the standard pro forma type of grounds alleging that Judge Chan was wrong in law in holding there was no state acquiescence and that he failed to provide detailed reasons.  No further particulars were provided.

8.5.  By a letter dated 28 June 2019, the applicant asked the Court to give him two to three months to apply for legal aid, where he can then provide the Court with written submission.  We are not prepared to do so.

8.6.  We are of the view that the most important consideration in an extension of time to appeal application is whether there are merits in the intended appeal.  There are no merits in the applicant’s case.  He has not identified any error of law or procedural unfairness in the decision of Judge Woodcock dated 9 February 2018, which is the relevant decision for the purpose of this application.

9)  Disposition

9.  As the intended appeal is unarguable, it will be futile to grant an extension of time. Accordingly, we will dismiss the applicant’s summons dated 10 June 2019.