RE FAROOQ ALI

CAMP 573/2021

[2022] HKCA 538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 573 OF 2021

(ON APPEAL FROM HCAL NO. 2304 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)  :

I.  Renewed application for extension of time to appeal

1.  On 23 October 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 3 November 2017 dismissing his appeal against the decisions of the Director of Immigration (‘the Director’)  dated 5 April 2016 and 15 May 2017 which rejected his non-refoulement claim.  The application was brought out of time by some eight months.

2.  In his decision of 26 January 2021, Deputy High Court Judge C P Pang refused to grant extension of time to the applicant to apply for judicial review and 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 17 March 2021 before Deputy High Court Judge P Li requesting an extension of time to appeal.  Judge Li on 30 November 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.  On 20 December 2021, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.  The application was late by almost two weeks.

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.

II.  Factual background

6.  The applicant is a national of Pakistan.  He came to Hong Kong illegally on 28 January 2008 and was arrested by the Police on 1 February 2008.  He was released on recognizance.  He made a torture claim on 11 February 2008.  Upon the commencement of the unified screening mechanism on 3 March 2014, his torture claim was treated as the non-refoulement claim.  He was subsequently arrested again on 5 May 2015 and sentenced to three-month imprisonment for trafficking in dangerous drugs.  He lodged his non-refoulement form on 8 January 2016 on the basis that he would be killed by someone due to a murder incident that happened in 1992 which involved the applicant’s brother. 

7.  The details of the applicant’s claim have been summarized by Judge Pang at [3] of the CALL-1 Form.

III.  The Director’s Decisions

8.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 5 April 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), as well as his other statutory and convention rights against torture and persecution.  By a further decision on 15 May 2017, the Director decided against the applicant’s claim under Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

IV.  The Board’s Decision

9.  The applicant appealed against the Director’s Decisions to the Board and attended an oral hearing on 31 July 2017 before the Board.  The Board found that the oral evidence given by the applicant was inconsistent with earlier versions given to the Director.  It held that the applicant was exaggerating the risks and danger if he was returned to Pakistan.  It also did not accept that the applicant would face real risk of harm as the murder event that took place was over 25 years ago which the applicant himself was not directly involved. In any event, the Board found that state protection is available and it was not unreasonable for the applicant to relocate elsewhere in Pakistan.  Therefore, the Board dismissed the applicant’s appeal against the Director’s decisions on 3 November 2017.

V.  Decisions of the Judge

10.  In his decision dated 26 January 2021, Judge Pang held that the delay of eight months was substantial and unaccounted for.  He further considered the merits of the application.  He held that there was no error of law, irrational findings, or procedural unfairness in the decision of the Board.  Furthermore, the applicant was unable to show that he had a reasonable prospect of success.  

11.  In his decision dated 30 November 2021, Judge Li held that the Court’s decision was sent to the applicant at his last known address without being returned undelivered.  As for merits, Judge Li agreed with the views of the Board and refused to grant extension of time to appeal as there was no merit in the intended judicial review.

VI.  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.

VII.  Analysis

1)  Length of delay and reasons for the delay

13.  The applicant was late by about five weeks when he filed his application for extension of time to appeal.  The applicant only explained in his summons and affirmation that he received the Court’s decision late when according to the Court record the decision was sent to his last known address on 26 January 2021. Although a different address was given on the summons dated 17 March 2021, it was the same address in the applicant’s Form 86.  It is the litigant’s duty to provide a proper address for service and bear the consequence of any problem in the mail.  We agree with Judge Li’s analysis that the judgment was properly sent and had not been returned undelivered.

2)  Prospect of the intended appeal

14.  We will turn to the merits of the intended appeal.

15.  In the applicant’s present summons and affirmation, the applicant simply stated that his time to appeal was over.  In his written submissions, the applicant repeated his allegation that he would have problems if he returned to Pakistan and he did not receive the Court’s decision so he could not appeal.

16.  In our judgment, the applicant does not have any prospect of success in his intended appeal.  Judge Pang had considered all the relevant matters including the merits of the applicant’s case when he refused to grant extension of time for leave for judicial review and refused his leave application.

17.  Since the applicant has not identified any error of law or procedural unfairness in the decision, the intended appeal cannot have any prospect of success.

VIII.  Disposition

18.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 20 December 2021.