RE RASOOL AKHTAR

CAMP 322/2021

[2022] HKCA 208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 322 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2848 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 12 December 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 29 November 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 29 June 2016 and 22 June 2017 rejecting his non-refoulement claim.

2.  In his decision of 5 August 2020, 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 28 October 2020 before Deputy High Court Judge P Li requesting an extension of time to appeal. Judge P Li on 29 June 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 (i.e.6 July 2021) after the judge’s refusal, make a renewed application to this Court for extension of time to appeal. On 6 August 2021, the applicant filed the present summons out of time (which is about less than one month late due to the 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, 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.  Briefly stated, the applicant is a Pakistan national. He entered Hong Kong illegally from Mainland China on 21 September 2013. The applicant raised his non-refoulement claim on 30 September 2013 based on his fear that he would be harmed or killed by the Pakistan Muslim League (N) because of a political dispute.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 29 June 2016. The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

8.  The Director decided against the applicant’s right to life claim on 22 June 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

9.  The applicant appealed against the Director’s Decision to the Board on 11 July 2016. An oral hearing was conducted on 24 July 2018. The Board dismissed the applicant’s appeal on 29 November 2018 and the Director’s Decision and Director’s Further Decision were affirmed. The Board found the applicant’s case of being assaulted to be incredible.

5)  Decisions of the Judge

10.  In his decision dated 5 August 2020, Judge K W Lung held that there was no error of law or procedural unfairness in the Board’s decision.

11.  In his decision dated 29 June 2021, Judge P Li held that the applicant had a duty to provide the Court with his updated address but he did not do so. The applicant must bear the consequence of his change of address. It was found that the applicant was not sincere with his claims and sought to delay at every opportunity. As for his claims of assault no public officials were involved. There was no ill treatment amounting to a minimum level of severity.

6)  Legal principles

12.  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

13.  [5] of the decision of 29 June 2021 stated that the applicant was 10 weeks out of time. This is not correct as August is the summer vacation of the High Court and time does not run during August: see section 31 of the High Court Ordinance (Cap. 4). Therefore, the deadline for the applicant to file his application for extension should be 14 September 2020, and the applicant was 44 days late.

14.  As pointed out earlier, the present summons is for a renewed application for extension of time to appeal.

15.  We agree with Judge P Li’s view that the delay was significant and the applicant must bear the consequence for not providing the Court with his latest updated address.

(2)  Prospect of the intended appeal

16.  In the applicant’s summons and affirmation, the applicant simply exhibited copies of previous court decisions, and alleged there was risk to his life without particulars or explanations.

17.  In the applicant’s written submissions, the applicant provided 10 pages of general legal principles and authority for non-refoulement cases without specifics as to how they relate to the applicant’s circumstances.

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

19.  The two judges had considered all the relevant matters including the merits of the applicant’s case when they refused to grant leave for judicial review and extension of time to appeal.

20.  Since the applicant has not identified any error of law or procedural unfairness in the decision of Judge K W Lung, the intended appeal does not have any prospect of success.

8)  Disposition

21.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons dated 6 August 2021.