RE ALI MAJID

CAMP 481/2021

[2022] HKCA 619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 481 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1253 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 3 July 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 20 October 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 21 July 2017 who refused to re-open his non-refoulement claim due to persistent default in submitting the required documentations.  The application was brought out of time by over five months.

2.  In his decision of 8 March 2021, Deputy High Court Judge K W Lung refused his application for extension of time for leave to apply for judicial review and dismissed his application.

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 over six months, the applicant took out an application on 30 September 2021 requesting an extension of time to appeal.  The Judge on 15 October 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 22 October 2021).  On 25 October 2021, the applicant filed the present summons out of time by three days 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 (out of time by around two months), 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 an illegal immigrant.  He first lodged his torture claim on 20 August 2009 (‘First Application’).  He failed to return his torture claim form within time and on 25 June 2013 his claim was treated as withdrawn under the relevant statutory provision.  In December 2013, he applied for non-refoulement protection under the provision for cruel, inhuman or degrading treatment or punishment (‘Second Application’). He failed to respond to the Director’s request for him to complete the form.  His case was treated as withdrawn again on 18 March 2015.  On 15 August 2015, the applicant applied to re-open his non-refoulement claim (‘Third Application’). He failed to attend the briefing session of the Director arranged on 5 August 2016.  The applicant requested for and was granted extension of time to make submission.  No submission was made.  On 22 September 2016, the Director informed him that his non-refoulement was treated as withdrawn.  In June 2017, the applicant applied again to re-open his case (‘Fourth Application’).

7.  It is in respect of the Fourth Application that the Director by his Decision dated 21 July 2017 decided not to re-open the applicant’s non-refoulement claim and withdrew his claim. 

3)  The Director’s Decision

8.  The Director held that ample time and opportunities had been given to the applicant to submit facts and supporting documents if he wished to do so.  No special circumstance was found by reason of which it would not be unjust not to re-open his case (‘the Director’s Decision’).

4)  The Board’s Decision

9.  The applicant appealed/petitioned against the Director’s Decision to the Board.  No oral hearing was conducted and the matter was dealt with on paper.  The Board dismissed the applicant’s appeal on 20 October 2017.  The Board was of the view that the applicant had repeatedly failed to respond to the Director’s requests and it was an abuse of process for him to bring repeated applications. 

5)  Decisions of the Judge

10.  In his decision dated 8 March 2021, the Judge held that the Board had assessed the factual situation leading to the Director’s refusal to re-open the applicant’s non-refoulement claim.  The applicant failed to state any ground on where the Board was wrong.  There was no error of law or procedural unfairness.   

11.  In his decision dated 15 October 2021, the Judge held that the applicant has not even set out his facts in support of his claim, since he has failed to provide further information.  There was nothing for the Director or the Board to assess the merits of the applicant’s claim.

6)  Legal principles

12.  In considering whether to extend time for appeal / petition, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal / petition; 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.  The applicant was over six months late when he filed his extension of time to appeal application on 30 September 2021.  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.  The applicant simply stated that he was detained without setting out the facts surrounding his many defaults in submitting his required documents to the Director of Immigration.  In any event, we will turn to the merits of his intended appeal.

(2)  Prospect of the intended appeal

14.  The applicant was over five months late when he filed his application for leave for judicial review by Form 86.  The applicant did not provide any reason for his delay in lodging his judicial review.  He simply stated that his life was in danger.  We agree with the Judge that there is no merit in the intended application, and his extension application was rightly refused.

15.  In the applicant’s present summons and affirmation, the applicant made bare assertion that he never received court documents.  He complained that he had no chance to clarify his case.  In his written submissions which was lodged around two months out of time, the applicant stated general non-refoulement legal principles and statutory provision without specifying how they relate to his case.

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

17.  The Judge has considered all the relevant matters including the merits of the applicant’s case when he refused extension of time for leave to apply for judicial review and dismissed his application.

18.  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

19.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons dated 25 October 2021.