Re Siddiq Mohammed Abubakar

CAMP 12/2023, [2023] HKCA 980

On Appeal From [2019] HKCFI 604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 80 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.On 16 January 2018, the applicant issued his application for leave for judicial review by Form 86 in HCAL 80/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 8 November 2017 which dismissed his appeal against the decisions of the Director of Immigration (‘the Director’) dated 18 July 2014 and 8 June 2017 rejecting his non‑refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 3 October 2019.

2.Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 17 October 2019). Being out of time for around 1 year and 8 months, the applicant took out an application on 16 June 2021 before the Judge requesting an extension of time to appeal. The Judge on 17 November 2021 rejected the applicant’s application for extension of time to appeal.

3.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. 24 November 2021). On 11 January 2023, being over one year late, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.

4.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

5.Briefly stated, the applicant is a Ghana national. In 2004 the applicant came to Hong Kong as a visitor. He overstayed. From time to time he would go to the Mainland and return to Hong Kong. In August 2010, he surrendered himself to the Immigration Department. He raised his non‑refoulement claim on 19 October 2010 alleging that he would be harmed or killed by one Mr. Mahami’s two sons because the applicant failed to repay a debt which he owed in 2002.

3)  The Director’s Decision

6.The Director decided against the applicant’s non‑refoulement claim on 18 July 2017. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

7.The Director decided against the applicant’s right to life claim on 8 June 2017 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

8.The applicant appealed/petitioned against the Director’s decisions to the Board. An oral hearing was conducted on 7 January 2015. The Board dismissed the applicant’s appeal/petition. The Board held that there were discrepancies between the applicant’s torture claim form and his evidence during the Board’s hearing. It did not accept that the applicant was severely attacked and wounded by Mahami’s sons. Even if he was, it was in 2002 and after such long lapse of time it could not accept that they would still hold a grudge against the applicant. Internal relocation was possible.

5)  Decisions of the Judge

9.In his decision dated 3 October 2019, the Judge held that no ground for seeking relief was stated in the applicant’s application for leave for judicial review. There was no error of law or procedural unfairness in the proceedings below.   

10.In his decision dated 17 November 2021, the Judge held that a 20‑month delay was extremely inordinate. The applicant made the assertions that he was detained or that he never received the decision and other explanations but none of them was supported by further details. The court record showed that the decision was sent to the applicant without being returned undelivered. It was held that importantly, the applicant failed to put forth any proper ground of appeal. The application for extension of time for appeal was refused.

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.Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

13.The applicant was around 1 year and 8 months late when he filed his extension of time to appeal application on 16 June 2021. The applicant made a bare assertion that he did not receive the decision. The court record showed that the decision was mailed to him on the same day as Form CALL‑1.

(2)  Prospect of the intended appeal

14.In the applicant’s summons, the applicant stated that he did not get the High Court letter on time. In his affirmation, the applicant stated that he did not agree with the decision. In his written submission, the applicant stated factual matters that are within the provenance of the Board. Specifically, he referred to factual matters such as he had married a Hong Kong permanent resident and he is applying for a dependant’s visa to take care of his wife. None of these matters was raised before the Board.

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

16.The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

17.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. The new matters referred to by the applicant are not relevant for the purpose of considering whether the decisions below were correctly made.

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 filed on 12 December 2022.

Applicant, unrepresented, acting in person