RE ABDUL SHAKOOR

CAMP 465/2021

[2022] HKCA 600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 465 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 484 OF 2019)

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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 20 February 2019, 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 4 January 2019 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 31 May 2018 rejecting his non-refoulement claim which did not include torture claim since the applicant had previously lodged a torture claim which was rejected.  The application was brought within time.

2.  In his decision of 28 January 2021, Deputy High Court Judge C P Pang dismissed his application for leave to apply 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 for three months and 10 days, the applicant took out an application on 21 May 2021 requesting an extension of time to appeal.  Deputy High Court Judge P Li on 9 September 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 (i.e. by 16 September 2021).  On 18 October 2021, the applicant filed the present summons out of time by around one month 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, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.  The applicant is a Pakistan national.  He entered Hong Kong illegally by boat on 1 May 2009.  The applicant raised his non-refoulement claim in October, November and December 2013 based on his fear that he would be harmed or killed by his eldest brother as he refused to take his offer of another piece of infertile land in exchange for his share of the fertile land passed on from his father.  The applicant previously made a torture claim and was rejected by an immigration officer in October 2013.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 31 May 2018.  The Decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  (‘BOR 3’), Bill of Rights (‘BOR’)  Article 2 (right to life)  (‘BOR 2’)  as well as other statutory and convention rights against persecution (‘the Director’s Decision’).

4)  The Board’s Decision

8.  The applicant petitioned against the Director’s Decision to the Board on 11 June 2018.  An oral hearing was conducted on 5 October 2018.  The Board dismissed the applicant’s petition on 4 January 2019 and the Director’s Decision was confirmed.  The Board held that the applicant’s brother never threatened to kill the applicant, nor did he do anything to seriously harm the applicant.  Although the applicant had been beaten up by his brother, it was only punches to his body or slapping on his face.  This was purely a case of domestic dispute.

5)  Decisions of the Judges

9.  In his decision dated 28 January 2021, Judge Pang held that the Board rejected the applicant’s case on the primary facts.  The applicant’s fear arose out of a private dispute.  There was no error of law or procedural unfairness.   

10.  In his decision dated 9 September 2021, Judge Li held that the court’s decision was sent to the applicant’s last known address and there was no return mail.  He did not accept the applicant’s reason for delay.  For merits, the Judge held that the eldest brother had no intention to kill.  There was no merit in the intended appeal. 

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 three months and 10 days late.  The lateness was substantial.  Due to the serious delay, the intended appeal must satisfy real prospect of success before an extension of time will be granted : Re Ansar Muhammad [2018] HKCA 227.

13.  In the applicant’s summons and affirmation, the applicant made a bare assertion that his time was over without any further explanation.  In his written submissions, he simply stated that he feared for his life, and that his enemies are powerful.  We do not accept the applicant’s bare assertions of lateness.  In any event, we will turn to the merits of the intended appeal.

(2)  Prospect of the intended appeal

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

15.  Judge Pang had considered all the relevant matters including the merits of the applicant’s case when he refused leave to apply for judicial review.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judges, the intended appeal does not have any prospect of success.

8)  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons dated 18 October 2021.