Re Ceesay Ahmad

CAMP 594/2021

[2022] HKCA 499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 594 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1622 OF 2019)

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Before:  Hon Cheung and Au JJA in Court

Date of Decision:  11 April 2022

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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.  On 14 June 2019, 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 10 June 2019 dismissing his appeal against the decision of the Director dated 27 September 2018 rejecting his non-refoulement claim.

2.In his decision of 20 May 2021, Deputy High Court Judge P. Li 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 9 June 2021 before the Judge requesting an extension of time to appeal.  The Judge on 22 December 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 24 December 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The application was made within time.

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.

2)  Factual background

6.Briefly stated, the applicant is a Gambian national.  In 2012, he was an active member of an opposition political party called the United Democracy Party (‘UDP’).  He did not hold any office.  The ruling party was the Alliance for Patriotic Reorientation and Construction (‘APRC’).  The applicant claimed that he joined a protest organized by the UDP at the end of April 2016.  He was arrested, beaten while detained and sustained injuries to his body.  He ultimately got out of prison, fled Gambia and arrived in Hong Kong on 4 November 2016.  The applicant feared that he might be harmed or killed by the Police if he returned to Gambia.  He filed the non-refoulement claim in this case on 13 and 15 January 2017.

3)  The Director’s Decision

7.The Director decided against the applicant’s non-refoulement claim on 27 September 2018.  The decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

8.The applicant appealed against the Director’s decision to the Board.  An oral hearing was conducted on 28 February 2019.  The Board dismissed the applicant’s appeal on 10 June 2019, and the Director’s decision was confirmed.  In sum, the Board did not find the applicant’s evidence to be credible.  The Board also concluded that the applicant was not an opposition political activist.  He was not arrested and detained by the Gambian authorities because of political activities.  He was not ill-treated as he described, and there was no real risk that he would be harmed or killed by the Gambian police.  On such basis, the Board confirmed the Director’s dismissal of the applicant’s claim based on BOR 2, BOR 3, persecution and torture risks.

5)  Decision of the Judge

9.In his decision dated 20 May 2021, the Judge dismissed the applicant’s leave application for judicial review because the applicant failed to identify any specific grounds for judicial review in support of his application. 

10.In his decision dated 22 December 2021, the Judge held that the applicant was out of time for about one week when he issued the application to extend time to appeal.  As such, delay was due to the applicant’s failure to update his address with the Court, the applicant must bear the consequence of such failure.  Further, focusing on the merits, the Judge held that the applicant did not put forward any valid grounds of appeal.

6)  Legal principles

11.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

12.We will focus on the merits of the intended appeal. 

(2)  Prospect of the intended appeal

13.The applicant did not identify any grounds in support of the intended appeal.  In the applicant’s summons for extension of time to appeal, the applicant simply stated that he wanted to challenge the decision of the Judge below.  The applicant did not file any written submission. 

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 leave for judicial review. 

16.Since the applicant has not identified any error of law or procedural unfairness in the decision 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 dated 24 December 2021.

Applicant, unrepresented, acting in person