RE SHARJEEL

CAMP 135/2023, [2024] HKCA 96

On Appeal From [2022] HKCFI 2860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 135 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2099 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 3 October 2018, the applicant issued his application for leave for judicial review by Form 86 in HCAL 2099/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 20 September 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 24 July 2017 rejecting his non-refoulement claim. Deputy High Court Judge To refused to grant leave for judicial review on 20 September 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 5 October 2022, as 4 October 2022 was a public holiday). Being out of time for about 28 days, the applicant took out an application on 3 November 2022 before the Judge requesting an extension of time to appeal. The Judge on 20 February 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 31 March 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  On 23 August 2023, the Appeals Registry received a request from the applicant to dismiss his 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, written submissions and request for dismissal of the appeal, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2) Factual background

6.  Briefly stated, the applicant is a Pakistan national. The applicant claimed that he left Pakistan for the Mainland in April 2016. He then entered Hong Kong illegally in May 2016. He raised his non-refoulement claim on 17 May 2016 alleging that he would be harmed or killed by the Pakistan Muslim League (N) (‘PML-N’) and also by the Shia Muslims because the applicant supported the Pakistan Tehreek-e-Insaf (‘PTI’) and he is a Sunni Muslim.

3) The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 24 July 2017. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and 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

8.  The applicant appealed against the Director’s Decision to the Board. An oral hearing was conducted on 23 July 2018. The Board dismissed the applicant’s appeal on 20 September 2018 and the Director’s Decision was confirmed. The Board found the applicant’s case incredible. Although it accepted that the applicant may have been involved in religious activities, he was an ordinary low profile Sunni in Pakistan and was not a religious leader. The Board did not accept that the applicant was ever politically active or participated in PTI activities. He exaggerated his religious profile in order to prolong his stay in Hong Kong. The Board rejected all of the past incidents claimed by the applicant arising from political activities. It did not accept that the applicant sought assistance from the police. It did not accept that the applicant was tortured by PML-N. It did not accept that the applicant’s family was approached or asked for his whereabouts. The Board did not accept that the applicant was truthful.

5) Decisions of the Judge

9.  In his decision dated 20 September 2022, the Judge held that no ground for seeking relief was stated in the applicant’s Form 86 or affirmation. There was no error of law or procedural unfairness.

10.  In his decision dated 20 February 2023, the Judge held that the decision was properly sent to him by post. The applicant’s delay in his application was either that he was not telling the truth about checking his mail box from time to time, or that he was negligent. There was no dispute that the decision was actually delivered. The Judge then turned to prospects of success in the intended appeal. He held that the applicant did not put forward any proper 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

11.  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

12.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

13.  The Form CALL-1 decision was handed down on 20 September 2022. The deadline for the appeal was 5 October 2022. The applicant was about one month late when he filed his extension of time to appeal application on 3 November 2022. The Judge did not accept the reasons of the applicant’s delay that his mail box was being shared with other units in this building.

(2) Prospect of the intended appeal

14.  In the applicant’s summons, the applicant repeated that he had checked his mail box from time to time. In his affirmation, he stated that a ground will be provided at a later time. In his written submissions, he stated broad and vague assertions, together with general principles of non-refoulement and statutory reference without detailing how they applied to his case. He also stated that he married a ‘Hong Kong girl’ and therefore he cannot leave her here in Hong Kong.

15.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

16.  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. His marriage to a Hong Kong girl is not a relevant matter for the Judge’s consideration.

17.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8) Disposition

18.  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 31 March 2023.

19.  We would also dismiss the applicant’s summons filed on 31 March 2023 in accordance with the applicant’s request for dismissal of appeal.