Re Zulfiqar Ali

CAMP 153/2022

[2022] HKCA 1536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 153 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 786 OF 2019)

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Before : Hon Kwan VP and Cheung JA in Court

Date of Decision :  17 October 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 21 March 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 18 February 2019 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 26 March 2018 rejecting his claim for non-refoulement protection.

2.In his decision of 28 October 2021, Deputy High Court Judge K W Lung 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 for over two months, the applicant took out an application on 8 February 2022 (late for over two months) before the Judge requesting an extension of time to appeal.  On 10 March 2022, the Judge 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 13 May 2022 (late for almost one month), the applicant filed the present summons 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.

II.  Factual background

6.The applicant is a national of Pakistan. He entered Hong Kong as a visitor on 14 March 2002 and was arrested on 28 December 2006 for overstaying and theft, the theft charge was later withdrawn. On 26 February 2007, the applicant lodged a torture claim under Article 3 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CIDTP’) but was later withdrawn by him.  The applicant was then arrested again on 16 July 2013 and subsequently lodged another CIDTP claim.  On 1 February 2018, he requested his previous torture claim be reopened and therefore, his CIDTP and torture claim were assessed together.

7.The applicant’s claims are on the basis he would be harmed or killed by the members of the Pakistan People’s Party (‘PPP’) because he was in an opposing political party and refused to join the PPP. 

8.The details of the applicant’s claim have been summarized by the Judge at [4] to [6] of the CALL-1 Form.

III.  The Director’s Decision

9.The Director decided against the applicant’s non‑refoulement claim on 26 March 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.

IV.   The Board’s Decision

10.The applicant appealed against the Director’s Decision to the Board.  An oral hearing was held on 18 October 2018.  The Board rejected the applicant’s claims.  While the Board accepted that the applicant may have been involved in a political party, there was no corroborative evidence to support his dispute with the opposing party. The Board also held that based on the available country of origin information, it was unlikely the applicant was still pursued by those members of the opposing party.  In any event, there was no state involvement and relocation to other regions of Pakistan was not unreasonable to the applicant.

V.    Decisions of the Judge

11.In his decision dated 28 October 2021, the Judge reviewed the Board’s decision with rigorous examination and anxious scrutiny.  He did not find any errors of law, procedural unfairness, unreasonableness or irrationality in the Board’s decision of 18 February 2019.  The Judge found that the applicant failed to show any reasonable prospect of success in the intended judicial review.   

12.In his decision dated 10 March 2022, the Judge held that the delay of two months was significant nonetheless he considered the merits and found there was no merit for the intended appeal.

VI.   Legal principles

13.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.

VII.   Analysis

1)   Length of delay and reasons for the delay

14.The applicant was late for over two months when he filed his application for extension of time to appeal. The applicant only explained in his summons and affirmation that he did not receive the Court’s decision within time.  The delay is significant, nevertheless, we agree with the Judge’s approach and shall focus on the merits of this case.

2)   Prospect of the intended appeal

15.In his written submissions, the applicant again repeated the dangers he would face if he is returned to Pakistan. 

16.In our judgment, the applicant does not have any prospect of success in his intended appeal.  The Judge had considered all the relevant matters including the merits of his case when he refused to grant leave for judicial review and dismissed his application.

VIII.  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 13 May 2022.

Applicant, unrepresented, acting in person