RE SHAIKH SARFARAZ

CAMP 344/2021

[2021] HKCA 2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 344 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2659 OF 2018)

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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.  On 23 November 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 Torture Claims Appeal Board (‘the Board’)  dated 31 October 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 17 April 2018 rejecting his non-refoulement claim.  The application was brought within time.

2.  In his decision of 10 May 2021, Deputy High Court Judge K W Lung refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time, the applicant took out an application on 21 July 2021 before the Judge requesting an extension of time to appeal.  The Judge on 10 August 2021 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.  On 17 August 2021, the applicant filed the present summons within time (due to summer vacation)  to make a further application to this Court for extension of time to 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 and affirmation, 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 an India national.  He entered Hong Kong as a visitor but overstayed.  The applicant raised his non-refoulement claim in March 2015 based on his fear that he would be harmed or killed by Asgar due to a loan dispute.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 17 April 2018.  The Decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board on 4 May 2018.  An oral hearing was conducted on 14 September 2018.  The Board dismissed the applicant’s appeal on 31 October 2018 and the Director’s Decision was affirmed.  The Board held that the applicant was unable to provide any details of his loan.  There was no evidence of Asgar’s threat provided.  The applicant never sought assistance from the police.  Internal relocation was possible.  The applicant failed on all applicable grounds.

5)  Decisions of the Judge

9.  In his decision dated 10 May 2021, the Judge held that although the grounds in support of his application was ‘sweeping’, most of those grounds were not applicable to the applicant’s case.  There was no evidence to support the applicant’s grounds.  There was no error of law or procedural unfairness in the Board’s decision.   

10.  In his decision dated 10 August 2021, the Judge referred to the Board’s decision and held that the applicant was unable to show any reasonable prospects of success.  

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.  The applicant was less than two months late in lodging his appeal.  The applicant stated in his summons and affirmation that he did not receive the Form CALL-1 decision within the 14-day appeal period.  

13.  In the applicant’s present summons and affirmation, he repeated that he did not receive the Form CALL-1 decision with the 14-day appeal period and he only got it after searching the court file himself.

14.  We will adopt the Deputy Judge’s approach by focusing on the merits of the intended appeal.

(2)  Prospect of the intended appeal

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

16.  The Deputy Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review. 

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 dated 17 August 2021.