RE ALI SIRAJ

CAMP 204/2020

[2021] HKCA 816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 204 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 416 OF 2017)

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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

1.1  On 17 July 2017, the applicant issued his application for leave for judicial review by Form 86.  

1.2  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 11 July 2017 dismissing his appeal against the decisions of the Director of Immigration (‘the Director’) dated 5 August 2015 and 10 April 2017 rejecting his non-refoulement claim.  The application was brought within time.

1.3  On 11 May 2018, Deputy High Court Judge Bruno Chan dismissed the applicant’s application.  

1.4  Being almost two years out of time, the applicant took out an application on 7 May 2020 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 8 September 2020 rejected the applicant’s application for an extension of time to appeal.  

1.5  On 2 November 2020, the applicant by summons together with a supporting affirmation issued a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragraphs 3 to 8.  He did not lodge his written submissions by the stipulated deadline as contained in the letter from the Registrar of Civil Appeals dated 21 January 2021.

1.6  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

2.  Briefly stated, the applicant is a Bangladeshi national.  He came into Hong Kong on 17 August 2006 and stayed here since.  He subsequently raised a non-refoulement claim on 19 March 2009 based on his fear that he would be harmed or killed by the brothers of a man whom he was falsely accused to have murdered.

3)  The Director’s Decision and the Director’s Further Decision  

3.1  The Director decided against the applicant’s non-refoulement claim on 5 August 2015.  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.

3.2  The Director decided against the applicant’s right to life claim on 10 April 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

4.  The applicant appealed against the Director’s Decision to the Board.  Oral hearings were conducted on 7 April 2017 and 12 May 2017 for the Board’s assessment of all applicable grounds.  The Board dismissed the applicant’s appeal and affirmed both decisions of the Director on 11 July 2017.  In gist, the Board rejected the applicant’s claim according to the evidence provided.  There was no reason why the applicant could travel freely despite his allegation that he was wanted by the Police as a murderer.  The applicant’s evidence was built on speculation and hearsay evidence.  The applicant failed to prove his case on all applicable grounds.

5)  Decisions of the Judge

5.1  In his decision dated 11 May 2018, the Judge held that the applicant provided no grounds in his Form 86 nor in his supporting affirmation but merely repeating his claim that his life was in danger and he would be killed if refouled without elaboration.  No error of the Board was shown.  

5.2  In his decision dated 8 September 2020, the Judge held that the applicant failed to provide good reason for his serious delay in appealing his decision.  There was no identification of any error in his decision.  

6)  Legal principles

6.  In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

(4)  Prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1  The applicant was almost two years late when he filed the summons in the lower court for extension of time to appeal.  Ignorance of the law was no excuse.  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.

(2)  Prospect of the intended appeal

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

7.3  In the present application, the applicant in his summons simply stated that the Judge failed to show cause.  No particulars or explanations were provided.

7.4  In the applicant’s supporting affirmation, he simply stated that he did not agree with the Judge.

7.5  The focus of an appeal in this Court is the correctness of the decision of the Judge.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)  Disposition

8.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 2 November 2020.