Re Khan Shahbaz

CAMP 482/2021

[2022] HKCA 629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 482 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2953 OF 2018)

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Before:  Hon Cheung and G Lam JJA in Court

Date of Decision:  4 May 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) :

I.  Renewed application for extension of time to appeal

1.On 24 December 2018, 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 18 April 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 25 August 2017 rejecting his non-refoulement claim (other than torture risk).  The application was brought out of time by more than five months.

2.In his decision of 25 November 2020, Deputy High Court Judge P Li refused to grant extension of time to the applicant for leave to apply for judicial review and dismissed his application for leave to apply 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 for more than six months, the applicant took out an application on 18 June 2021 requesting an extension of time to appeal.  The Judge on 5 October 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 (i.e. by 12 October 2021).  On 25 October 2021, the applicant filed the present summons out of time by 13 days to make a further application to this Court for extension of time to appeal. 

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.The applicant is an Indian national.  He entered Hong Kong as a visitor in May 2008 but overstayed.  The applicant raised his torture claim on 25 July 2008.  The applicant withdrew his torture claim on 24 October 2013.  He raised his non-refoulement claim by supplemental claim form dated 7 August 2017, on his fear that he would be harmed or killed by two paternal uncles in India because he refused to give a piece of inherited land to them.

7.During the time the applicant was in Hong Kong between July 2008 and April 2017, the applicant committed various criminal offences including trafficking in dangerous drugs, fighting in a public place, theft, possession of dangerous drug, ill treatment or neglect of child or person under 16.

3)  The Director’s Decision

8.The Director decided against the applicant’s non-refoulement claim (other than torture risk)  on 25 August 2017. The Decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment), Bill of Rights (‘BOR’)  Article 2 (right to life), as well as other statutory and convention rights against persecution (‘the Director’s Decision’).

4)  The Board’s Decision

9.The applicant appealed against the Director’s Decision to the Board on 7 September 2017.  An oral hearing was conducted on 5 March 2018 but the applicant did not attend.  The Board dismissed the applicant’s appeal on 18 April 2018 and the Director’s Decision was confirmed.  The Board held that as the applicant failed to attend the hearing in person, the Board was unable to test the applicant’s evidence.  Having been unable to clarify many essential aspects of the applicant’s claims, the Board was not satisfied that based on the limited evidence available he was telling the truth.  The applicant’s claims were rejected.  There was an absence of any risk of harm.

5)  Decisions of the Judge

10.In his decision dated 25 November 2020, the Judge held that the Board was right to determine the appeal in the absence of the applicant.  There was no attempt by the applicant to explain his absence from the Board’s hearing.  There was no complaint about the appeal.  There was no explanation for his delay in taking out Form 86 application before the Court.  There was no merit in the applicant’s intended application for judicial review.  There was no error of law and procedure.   

11.In his decision dated 5 October 2021, the Judge did not accept the applicant’s statement that he was not given an opportunity to clarify his case, or that he was not aware of the 14-day time limit.  Further, the Judge held that it was only after the applicant took out his summons and affirmation that he wrote to the Court stating that on 25 November 2020 he was detained in Lai Chi Kok.  It was inexcusable that he did not include this information in his summons and affirmation.  The Judge held that there was no merit for an intended judicial review application.  The Judge refused extension of time to appeal.

6)  Legal principles

12.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

13.The applicant was more than six months late when he filed his application for extension of time to appeal on 18 June 2021.  The lateness was substantial.  In the applicant’s present summons and affirmation, the applicant repeated that he was out of time because he was unaware of the 14-day rule (under Order 53 of the Rules of High Court), and that he did not receive the decision on time.  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

14.In his written submissions, the applicant stated general non-refoulement legal principles and statutory provision without specifying how they relate to his case.  The applicant was over five months late when he filed his application for leave for judicial review.  He did not provide any reason for his delay.  Nor did he explain his failure to attend the hearing before the Board.

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

16.Deputy Judge P Li had considered all the relevant matters including the merits of the applicant’s case when he refused to grant extension of time for leave for judicial review and refused to grant him leave to apply for judicial review.

17.Since the applicant has not identified any error of law or procedural unfairness in the decision of Judge P Li, the intended appeal does not have any prospect of success.

8)  Disposition

18.As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 25 October 2021.

Applicant, unrepresented, acting in person