RE AHMED SALAUDDIN

CAMP 157/2023, [2024] HKCA 47

On Appeal From [2022] HKCFI 1803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 157 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 1109 OF 2019)

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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 25 April 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 1109/2019. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 12 April 2019 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 12 April 2018 rejecting his non-refoulement claim under all applicable grounds except for torture. Deputy High Court Judge KW Lung refused to grant leave for judicial review on 7 July 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 21 July 2022). Being out of time for about 36 days (since August 2022 was the Summer Vacation), the applicant took out an application on 26 September 2022 before the Judge requesting an extension of time to appeal. The Judge on 28 October 2022 rejected the applicant’s application for extension of time to appeal.

3.  On 17 April 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  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

5.  Briefly stated, the applicant is an Indian national. He entered Hong Kong on 18 July 2005 as a visitor and applied for extension of stay but was refused. The applicant overstayed and was arrested on 14 May 2007. He raised a torture claim on 4 June 2007 and it was rejected on 24 October 2013. He then raised a non-refoulement claim on 7 January 2014 on all applicable grounds except torture alleging that he would be harmed or killed by Mumtaz or his father because of a business dispute.

3) The Director’s Decision

6.  The Director decided against the applicant’s non-refoulement claim on 12 April 2018. 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 persecution except for torture (‘the Director’s Decision’).

4) The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board. An oral hearing was conducted on 16 January 2019. The Board dismissed the applicant’s appeal on 12 April 2019 and the Director’s Decision was confirmed. The Board stated it was not satisfied that the applicant’s claims were truthful. It held that the applicant gave inconsistent evidence that he left India because of a business dispute over unpaid debts. It held that the applicant gave inconsistent evidence about his family’s business, including when he became involved in the business, the amount of debt owed, or the year that his business closed down. It held that the applicant gave inconsistent evidence as to the amount of debt owed in his written evidence and his oral evidence during the hearing. There was no documentary evidence of the applicant’s family business, registration of business, that taxes were paid, invoices were issued or payment of money for work done. It held that the applicant gave inconsistent evidence in his written claim forms and during hearing as to whether he was ever beaten up. The Board was not satisfied that Mumtaz or anyone on his behalf ever threatened the applicant of his family. The Board was not satisfied that Indian authorities have any adverse interest against the applicant as he was able to leave India without problem. The Board held that because of significant inconsistencies and lack of documentary evidence, it was not satisfied that the applicant or his family was ever threatened by Mumtaz, or that there was a real risk upon returning to India. Internal relocation was possible.

5) Decisions of the Judge

8.  In his decision dated 7 July 2022, the Judge held that the applicant’s documents did not specify any ground for relief. There was no error of law or procedural unfairness.

9.  In his decision dated 28 October 2022, the Judge held that there was no valid reason from the applicant to show that there is any realistic prospect of success in his intended appeal. The application for extension of time for appeal was dismissed.

6) Legal principles

10.  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

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

12.  The Form CALL-1 decision was handed down on 7 July 2022. The deadline for the appeal was 21 July 2022. The applicant was about 36 days late when he filed his extension of time to appeal application on 26 September 2022. The applicant did not give any explanation for the delay.

(2) Prospect of the intended appeal

13.  In the applicant’s summons and affirmation, the applicant asks for the Court to check previous applications for claimants who were deported forcefully and was killed upon returning. He asked to stay in Hong Kong.

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

15.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

16.  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.

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 filed on 17 April 2023.