RE MOHAMMAD HASIM

CAMP 17/2022

[2022] HKCA 1506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 17 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1468 OF 2018)

____________________

____________________

____________________

D E C I S I O N

____________________

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

1)  Renewed application for extension of time to appeal

1.  On 25 July 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Director of Immigration (‘the Director’) dated 19 June 2017 regarding the applicant’s claim for non-refoulement.  As will be explained later this is known as the subsequent claim.

2.  In his decision of 24 November 2021, Deputy High Court Judge K W Lung refused his application for leave to apply for judicial review and dismissed his application.  The Judge also amended the Form 86 so that the Director’s decision that was being challenged was the one dated 4 July 2018.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision (by 8 December 2021).  Being out of time for five days, the applicant took out an application on 13 December 2021 requesting an extension of time to appeal.  The Judge on 11 January 2022 rejected the applicant’s application.   

4.  Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (by 18 January 2022).  On 12 January 2022, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

5.  Pursuant to the directions of the Registrar of Civil Appeals dated 12 January 2022, the applicant was to lodge written submissions in support of the present summons by 26 January 2022.  He failed to do so, and therefore the applicant is treated as to have abandoned his right to rely on written submissions.

6.  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

7.  The applicant is a national of India.  He entered Hong Kong in August 2011 on the strength of his passport but overstayed.  On 21 July 2013 he made a non‑refoulement claim.

8.  The basis of the applicant’s claim is that he would be harmed or killed by his creditors if he was to return, due to his inability to pay his debt.

9.  The background facts have been summarized in the decision of the Judge at [6]. 

3)  The Director’s Decision & Further Decision

10.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 20 January 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

11.  The Director later decided against the applicant’s right to life claim on 9 February 2017 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

12.  The applicant appealed/petitioned against the Director’s Decision to the Board on 28 January 2016.   A hearing was conducted on 22 March 2017.  The Board dismissed the applicant’s appeal/petition on 23 June 2017.  The Board was of the view that there was no evidence from the applicant that the alleged assault occurred, reaching any level of minimum level of severity.  Even assuming the assaults did occur, it did not constitute torture because it was not inflicted by anyone in any official state capacity.

5)        The Director’s Subsequent Decision

13.  On 27 July 2017, the applicant was repatriated back to India.

14.  On 9 June 2018, the applicant claimed that he entered Hong Kong illegally.

15.  On 11 June 2018, the applicant lodged a written submission to the Immigration Department which was treated as a request to make a subsequent claim under the Unified Screening Mechanism (‘the subsequent claim’).

16.  On 4 July 2018, the Director decided that the applicant’s subsequent claim was not made out taking into account the evidence submitted as alleged to be significant change of circumstances.

6)  Decisions of the Judge

17.  On 25 July 2018, the applicant filed a Form 86 application for leave for judicial review.  In his decision dated 24 November 2021, the Judge explained that under section 37 ZR of the Immigration Ordinance the Board has no power to hear an appeal from the decision of the Director on a subsequent claim.  The Judge held that the applicant had no valid ground to support his application for judicial review.  There was no error of law or procedural unfairness.   

18.  In his decision dated 11 January 2022, the Judge held that the delay in filing the applicant’s summons for appeal out of time (that was taken out five days late) was not significant nor serious.  He held however that the applicant was unable to set out any valid ground to challenge the Board’s decision, nor could he point out any error in the Court’s assessment of his application.  The application for extension of time to appeal was refused.

7)  Legal principles

19.  In considering whether to extend time for appeal / petition, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal / petition; and

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

8)  Analysis

(1)  Length of delay and reasons for the delay

20.  The applicant stated in an attachment to his supporting affirmation dated 13 December 2021 that he received the Court’s order (i.e. Form CALL‑1) of 24 November 2021 on 11 December 2011 (the 14‑day limit for appealing ending on 8 December 2021), which was already out of time to appeal, and so he seeks an extension of time to appeal.  In any event, the Judge has already held that the delay was not serious or significant and turned to the merits.  We will also turn to the merits of the applicant’s intended appeal.

(2)  Prospect of the intended appeal

21.  In the applicant’s present summons and affirmation, the applicant made bare assertions that problems were severe in his home country.  He stated that the Board did not scrutinize his claim properly without explaining why.  He stated that there were many ‘unacceptable’ and ‘unexplained’ grounds, again without any explanation.  He stated that if he had not run away, he would have been killed.

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

23.  The Judge has considered all the relevant matters including the merits of the applicant’s case when he refused extension of time for leave to apply for judicial review and dismissed his application.

24.  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.

9)  Disposition

25.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 12 January 2022.