RE IQBAL ADNAN

CAMP 239/2023, [2024] HKCA 48

On Appeal From [2023] HKCFI 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 239 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 51 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 8 January 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 51/2019. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 3 December 2018 which refused the applicant’s appeal against the Director’s Decision of 10 October 2017. Deputy High Court Judge KW Lung refused to grant leave for judicial review on 13 February 2023.

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 27 February 2023). Being out of time for over three months and two days, the applicant took out an application on 29 May 2023 before the Judge requesting an extension of time to appeal. The Judge on 20 June 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 26 June 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, 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

5.  Briefly stated, the applicant is a Pakistan national. The applicant entered Hong Kong illegally on 16 February 2016. The applicant raised a non-refoulement claim on 19 February 2016 alleging that if he returned to Pakistan he would be harmed or killed by Irfan a distant relative because the applicant did not help or support him in an election as an independent candidate. The applicant was a supporter of the ‘Pakistan Muslim League (N)’ (‘PML-N’) which put forward its own candidates for the election.

3) The Director’s Decision

6.  The Director decided against the applicant’s non-refoulement claim on 10 October 2017. 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 torture and persecution (‘the Director’s Decision’).

4) The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’). The Board dismissed the applicant’s appeal against the Director’s Decision on 3 December 2018 (‘the Board’s Decision’). In the Board’s Decision, the Board held that on the evidence before it, it was not satisfied that the applicant faces a real chance of harm of any kind for any reason in Pakistan in the reasonably foreseeable future. There were doubts as to central aspects of the applicant’s claims. Specifically, the Board was not satisfied that the applicant or his family were or are actual supporters of PML-N or any other political party in Pakistan. The Board did not accept that the applicant was asked to campaign for a distant relative. The Board did not accept that Irfan or his network has any interest in harming or killing the applicant.

5) Decisions of the Judge

8.  In his decision dated 13 February 2023, the Judge held that there was no error of law or procedural unfairness in the Board’s decision.

9.  In his decision dated 20 June 2023, the Judge stated that the applicant tried to explain that he did not receive the Court’s decision, but according to Court record the decision was sent to the applicant’s last known address on 13 February 2023 without being returned undelivered. The applicant was unable to raise valid ground to challenge the Board’s decision. 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 13 February 2023. The deadline for the appeal was 27 February 2023. The applicant was about three months and two days late when he filed his extension of time to appeal application on 29 May 2023. The applicant barely stated that he did not receive any decision from the Court, and that he did not agree with the Court’s decision, without further explanation.

(2) Prospect of the intended appeal

13.  In the applicant’s summons, the applicant stated that the Court did not give him justice nor a chance to appeal. In the applicant’s affirmation, the applicant complained that he was not given time to appeal. In his written submissions, the applicant referred to factual matters and broad and vague assertions without specifying any error of the law made by the Judge.

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 26 June 2023.