Re Sajid Iqbal

CAMP 233/2020

[2021] HKCA 819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 233 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 776 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 3 May 2018, the applicant issued his application for leave for judicial review by Form 86.  

1.2The applicant’s intended judicial review was against the Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 29 March 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 21 December 2017 rejecting his non-refoulement claim.  The application was brought within time.

1.3On 21 May 2020, Deputy High Court Judge Bruno Chan dismissed the applicant’s application.  

1.4Being 14 days out of time, the applicant took out an application on 18 June 2020 before Deputy High Court Judge Bruno Chan requesting essentially for an extension of time to appeal.  The Judge on 10 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 paragraphs 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 Pakistan national.  He came into Hong Kong illegally in early May 2007.  He subsequently raised a non-refoulement claim on 2 July 2007 based on his fear that he would be harmed or killed by members of the Taliban due to his work as a volunteer.

3)  The Director’s Decision

3.The Director decided against the applicant’s non-refoulement claim on 21 December 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 2 January 2018.  The oral hearings were conducted on 14 February 2018 and 12 March 2018.  The Board dismissed the applicant’s appeal on 29 March 2018.  In gist, the Board rejected the applicant’s claim upon a finding of a lack of credibility on the applicant.  His answers to the Board’s questions were vague.  The evidence that the applicant provided for the Board’s assessment bore an entirely different family name to the applicant’s.  The Board found that the applicant was not a credible witness.

5)  Decision of the Judge

5.In his decision dated 21 May 2020, the Judge held that the applicant provided merely broad and vague grounds and assertions with no particularity.  In his decision dated 10 November 2020, the Judge held that he cannot see any prospect of success in the applicant’s intended appeal.  

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 14 days late when he filed the summons in the lower court for extension of time to appeal.  The applicant did not explain how he came to know about the Judge’s decision if he his allegation that he never received it in his mail was true.

(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 the Judge showed no good cause.  No particulars or explanations were provided.

7.4In the applicant’s supporting affirmation, no grounds or explanations were provided.

7.5In the applicant’s written submissions, he requested to be allowed to stay because of the ‘great interest of 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