Re Muhammad Asem Ali

CAMP 186/2024, [2025] HKCA 658

On Appeal From [2024] HKCFI 472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 186 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 1239 OF 2019)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.On 8 May 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 1239/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 12 April 2019 which confirmed the Director’s Decision of 31 May 2017.  Deputy High Court Judge KW Lung refused to grant leave for judicial review on 26 February 2024.

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.  Being out of time for over 2 months, the applicant took out an application on 4 June 2024 requesting an extension of time to appeal (‘the extension application’).  The Judge on 14 August 2024 rejected the applicant’s application for extension of time to appeal.

3.On 25 September 2024, the applicant filed the present summons 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 submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.  

2)  Factual background

5.The applicant is a Pakistan national.  In March 2003, the applicant last arrived in Hong Kong as a visitor but he overstayed and was arrested in June 2013.  The applicant raised a non‑refoulement claim in June 2013 alleging that if he returned to Pakistan he would be harmed or killed by people from Pakistan Muslim League (Nawaz) (‘PML(N)’)[1]. He belonged to a rival political party.

6.The background facts have been summarized in the decision of the Judge at [3] to [6].

3)  The Director’s Decision

7.The Director decided against the applicant’s non‑refoulement claim on 31 May 2017.   The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution[2] (‘the Director’s Decision’).

4)  The Board’s Decision

8.The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)^[3].  After a hearing held in September 2018, the Board dismissed the applicant’s appeal on 12 April 2019 (‘the Board’s Decision’).

9.The Board’s finding is summarized in the decision of the Judge at [9]-[11].

5)  Decisions of the Judge

10.In his decision dated 26 February 2024, the Judge held that the applicant never told the Board that he did not have sufficient time to prepare his case.  The Board was under no obligation to notify the applicant by telephone.  The screening applied to all applicable risks including BOR 2.  The applicant made bare allegation without evidence in support.  The Board may rely on country of origin information without going to the country concerned.  The applicant failed to show any realistic prospect of success in his intended judicial review[4].   

11.In his decision dated 14 August 2024, the Judge held that the decision was sent to the applicant by post without being returned undelivered, and the applicant was deemed to have received the Court’s decision.  The Judge held that there was no valid reason for the applicant to challenge either the Board’s decision or the Court’s decision.  The application for extension of time for appeal was dismissed[5].

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

14.The Form CALL-1 was dated 26 February 2024. The deadline for lodging an appeal against the Judge’s decision was 11 March 2024.  The applicant was over 2 months late when he took out a summons for extension of time to appeal (4 June 2024).  He simply stated that he did not receive the Court’s decision within reasonable time, without providing further explanations, when according to Court record, the Form CALL-1 was sent to the applicant’s last known address without being returned undelivered[6].

(2)  Prospect of the intended appeal

15.In the applicant’s summons, the applicant provided no grounds of appeal but simply stated that he did not receive the Court’s decision within the 14‑day period, and could only obtain the decision after searching the court file.  In the applicant’s affirmation, he stated that the decision was lost in post, and reiterated generally what was stated in his summons.  The applicant’s written submission consists entirely of general statements of law, bald assertions of procedural unfairness, and reference to section 37ZT of the Immigration Ordinance (Cap. 115).

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

17.Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, 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 filed on 25 September 2024.