RE RASHEED USMAN

CAMP 267/2019

[2021] HKCA 745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 267 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1096 OF 2017)

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J U D G M E N T

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The Court:

1.  This is the applicant’s application for leave to appeal against the decision of Campbell-Moffat J given on 2 November 2018 refusing to grant an extension of time for his application for leave for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 22 May 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 February 2016 refusing to allow the applicant to re-open his claim for non-refoulement protection.

Background

2.  The applicant is a national of Pakistan. He entered Hong Kong on 5 December 2012 illegally and was arrested by the police on 6 December 2012.  He lodged a torture claim on 8 December 2012. 

3.  The applicant’s claim was based on threats from members of an opposing political party and members of an opposing religious group.  The details of the applicant’s claim have been summarised by the judge at [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 31 July 2013 (“the Director’s Decision”), the Director decided against the applicant’s torture claim.  On 16 October 2015, the applicant withdrew his claim for non-refoulement protection on all applicable grounds other than torture risk. He claimed that it was safe for him to go back to Pakistan Lahore.  However, on 22 December 2015, he asked the Director to re-open his claim as it would be dangerous for him to go back.

5.  On 19 February 2016, the Director refused the applicant’s request to re-open his claim.

6.  The applicant appealed to the Torture Claims Appeal Board.  The Board dismissed the appeal on paper on 22 May 2017 (“Board’s Decision”) and affirmed the Director’s Decision dated 19 February 2016.  The Board held that the applicant had failed to provide any real evidence of a change of circumstances justifying a re-opening of case under section 37ZE(2) of the Immigration Ordinance (although [8] of the Board’s Decision mistakenly referred to section 37ZT(2)).  The Board also did not see any special circumstances that would make it unjust not to re-open the claim.

The Judge’s decision

7.  The applicant filed a form 86 on 18 December 2017 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 18 December 2017, the applicant explained why it is unsafe for him to return.

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to extend time for applying for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [7] to [9] of the CALL-1 Form:

“7. In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review. This was dated 18 December 2017. Under Order 53 rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. Where the relief sort is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from 22 May 2017. The Notice of Decision was sent to the Applicant’s registered address; the same address he relies upon for these proceedings. The Applicant has submitted no explanation for his delay and has not sought leave for an extension of time. I have never the less considered the principles applicable to granting such an extension as if an application had been made and those are 1) the length of delay; 2) the reasons for delay; 3) the prospects of success in the intended appeal; and 4) the prejudice to the putative respondent if extension of time were granted: Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015).

8. In this case, the Applicant was late by 118 days and has not offered any explanation for this delay. In view of that, he must satisfy the court that there is nevertheless a real prospect of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted. Whilst it is likely that the latter will not be prejudiced, there has been no reason given at all before the court as to why an extension of time for leave to apply for judicial review should be given. The merits of the Applicant’s claim as explained above are not reasonably arguable and he does not have a realistic prospect of success. Accordingly, this application is dismissed as being out of time.

9. Where the Applicant intends to appeal this refusal to grant leave to extend time, he must appeal this decision to the Judge against whose order his appeal is sought, within 14 days of the date of this order, in accordance with section 14AA of the High Court Ordinance, Cap 4 and Order 59 rule 2B, the Rules of the High Court.”

Application for extension of time for leave to appeal

11.  By a summons dated 24 January 2019, the applicant sought leave to appeal out of time. His application was dismissed by the judge on 8 April 2019.

12.  By a summons dated 22 October 2019, the applicant renewed his application before this court.  In the affirmation in support of the same date, he exhibited the CALL-1 Form and the order dated 8 April 2019 without giving any ground of appeal. 

13.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 24 October 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the Court.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

15.  As is apparent from the CALL-1 Form, while noting that the delay was substantial and did not appear to her to be excusable, the judge refused to grant an extension of time because of the lack of merit in the proposed judicial review.  Although the applicant was entitled to appeal against the judge’s decision as of right, he failed to appeal within the time limit for doing so, and thus required leave to appeal out of time.

16.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

17.  The applicant has failed to provide any ground of appeal.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 22 October 2019 is dismissed accordingly.

18.  We are also of the view that the application is totally without merit.  Pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.