RE BAPARY YEBRAHIM

CAMP 97/2019

[2019] HKCA 1175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 97 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 242 OF 2017)

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J U D G M E N T

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

1.  On 9 January 2018, Anthony Chan J. (“the Judge”) refused the applicant’s application for leave to start judicial review in respect of his claim for non-refoulement (“the Judge’s January Decision”), which application had been brought in time. Under Order 53 rule 3(4) Rules of the High Court (“RHC”), if the applicant wished to appeal the Judge’s January Decision to the Court of Appeal, he had to file a notice of appeal within 14 days (i.e. by 23 January 2018). Leave would not be required.

2.  However, it was not until more than a year later, on 25 March 2019, that the applicant filed a summons applying for an extension of time to appeal.  This application was dismissed by the Judge on 9 May 2019 (“the Judge’s May Decision”)[1].

3.  The Judge’s May Decision being an interlocutory order, if the applicant wished to appeal it as such, he had two routes. 

(A)  He would have to ask the judge at first instance for leave within 14 days of the interlocutory order: Order 59 rule 2B(1)(a) RHC.  If the judge refused leave, he could renew his application for leave before the Court of Appeal within 14 days of the judge’s refusal: Order 59 rule 2B(3) RHC. 

(B)  Alternatively, with the Court of Appeal’s permission, the application for leave may be made direct to this court: Order 59 rule 2B(4) RHC. 

4.  In the present case, the applicant filed a summons on 20 May 2019 in this court expressly for leave to appeal the Judge’s May Decision, i.e. route (B), which we would permit him to take.    

5.  The Judge’s May Decision refusing to extend time to appeal is a matter of discretion, and accordingly this court would not interfere unless the judge has erred in law, or in material fact, or had failed to take into account relevant matters, or had taken irrelevant matters into account, or the decision was plainly wrong.

6.  The Judge took into account the well-established factors: (1) the length of the delay; (2) the reasons given for the delay; (3) the merits of the intended appeal.

7.  First, the Judge took into account the fact that the applicant had been imprisoned between March 2018 and January 2019, but noted that the applicant had 2 months in which to file an appeal from the Judge’s January Decision before he was imprisoned (para. 5).    

8.  Secondly, the Judge noted that the applicant had not provided a proper explanation for the delay (para. 5).

9.  Thirdly, the Judge noted that the applicant had not shown any merits in his intended appeal from the Judge’s January Decision (paras. 3 and 6).  We agree with this view.  This court has read the decision of the Torture Claims Appeal Board (“TCAB”) which the Judge refused leave to judicially review.    

10.  The TCAB found that even on his own case, the applicant had only been physically assaulted by Sajib once (when they met by coincidence in the market), the applicant’s injuries were not serious, and Sajib did not carry out any further attacks on him for the month that followed (before the applicant left the country) even though he knew where the applicant lived.  In any event, it was a private matter between the applicant and Sajib, and the applicant had not shown that any state agents were involved.  The TCAB was clearly entitled to find that the applicant had failed to make out a case for non-refoulement protection under any of the applicable grounds.   

11.  For the reasons set out above, the Judge’s May Decision refusing to extend time to appeal was clearly right.

12.  Applying the legal principles set out in para. 5 above, it is clear that none of the circumstances permitting this court to interfere with the Judge’s May Decision is present in this case.  Accordingly, we dismiss the applicant’s summons.  As his application is devoid of merits, we would further order under Order 59 rule 2A(8) Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.