Re Khan Wajid

CAMP 232/2020

[2021] HKCA 818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 232 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 253 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

1.1On 15 February 2018, the applicant issued his application for leave for judicial review by Form 86.

1.2The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 4 January 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 16 February 2017 who rejected his non-refoulement claim.  The application was brought within time.

1.3On 6 July 2020, Deputy High Court Judge Bruno Chan dismissed the applicant’s application.  

1.4Being 15 days out of time, the applicant took out an application on 4 August 2020 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 19 November 2020 rejected the applicant’s application for an extension of time to appeal.  

1.5On 7 December 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 paragrahs 3 to 8.  He lodged his written submissions on 2 February 2021.

1.6Under 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

2.Briefly stated, the applicant is a Pakistani national.  He came into Hong Kong illegally on 5 July 2014.  He subsequently was arrested and raised a non-refoulement claim on 6 August 2014 based on his fear that he would be harmed or killed by the brothers of a woman whom he intended to marry.

3)  The Director’s Decision

3.The Director decided against the applicant’s non-refoulement claim on 16 February 2017.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, Bill of Rights (‘BOR’) Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.The applicant appealed against the Director’s Decision to the Board on 1 March 2017.  Oral hearing was conducted on 30 November 2017.  The Board dismissed the applicant’s appeal on 4 January 2018.  In gist, the Board rejected the applicant’s claim upon a finding of a lack of credibility on the applicant.  While the Board accepted that there may have been some level of intimidation from the brothers, the Board found that there was no reason for the brothers to pursue the applicant in different parts of Pakistan, or to employ gangs of people to look for him.

5)  Decision of the Judge

5.In his decision dated 6 July 2020, the Judge held that the applicant provided no grounds in his Form 86 and supporting affirmation.  No error of the Board was shown.  In his decision dated 19 November 2020, the Judge held that there were no draft grounds of appeal in his summons and affirmation.  The reasons for the delay in making an application were unpersuasive given the lack of evidence and the applicant was young and healthy.  

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

7.1The applicant was 15 days late when he filed summons in the lower court for extension of time to appeal.  The application’s explanation of having a fever and that he was concerned about the pandemic had no evidential support.

(2)  Prospect of the intended appeal

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

7.3In the present application, the applicant in his summons simply stated that he wanted to challenge the Judge’s decision.  No particulars or explanations were provided.

7.4In the applicant’s supporting affirmation, he stated that he received the decision after the deadline for making an application passed.  There are no intended grounds of appeal, nor any grounds on how the Judge fell into error.

7.5In the applicant’s written submissions, he repeated factual matters of his case.  He made various personal opinions in his submissions unsupported by evidence.  He stated he wished to save his life.

7.6The 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 7 December 2020.

The applicant, unrepresented, acting in person