RE KHAN WAJID

CAMP 232/2020

[2021] HKCA 1353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 232 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 253 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)  :

I.  Leave to appeal to the Court of Final Appeal

1.  On 7 June 2021, this Court (Cheung and Chu JJA)  gave the decision dismissing the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 6 July 2020 in which he refused to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board.

2.  The applicant now applies, by a notice of motion and supporting affirmation filed on 8 July 2021, for leave to appeal against our decision to the Court of Final Appeal.  The applicant further lodged written submissions in support out of time.

3.  Having considered the applicant’s documents, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The applicant’s notice of motion is three days late.  According to section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘Ordinance’), the applicant’s notice of motion ought to have been filed with the Court within 28 days of our extension decision.  Under section 24(5)  of the Ordinance, the Court may extend the time for filing of notice of motion, but good grounds must be shown before the Court’s discretion can be exercised.  An important consideration in this regard is the merits of the intended appeal: Full Wisdom Holdings Limited v Traffic Stream Infrastructure Co Ltd & Ors, CACV 266/2003, 27 July 2004 at [7] and [10].

5.  The applicant is three days late.  The applicant stated in his affirmation that ‘my time is over’ and stated he was ‘sorry’. No further details were provided.  However, given that the delay was insignificant, we will consider the merits of his intended appeal.

6.  The applicant provided no grounds of appeal in his notice of motion.  He merely repeated the fact that the Board and the Courts have rejected his claims in the appeal process.

7.  In his written submissions which were lodged out of time, the applicant repeated factual matters of his case, the fact that he had been rejected in his appeal process, and that he was not safe, hopeless and helpless.  Most if not all of these are personal opinions and issues.

2)  Legal principles

8.  Section 22(1)(b)  of the Ordinance states that leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

9.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the Ordinance.  Nor is there any such question apparent to us from the matters he has raised in his documents.

10.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b)  of the Ordinance.

4)  Disposition

11.  For these reasons, the notice of motion is dismissed.

Applicant, unrepresented, acting in person

CAMP 232/2020

[2021] HKCA 818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 232 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 253 OF 2018)

________________________

________________________

________________________

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

1.1  On 15 February 2018, the applicant issued his application for leave for judicial review by Form 86.

1.2  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 4 January 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 16 February 2017 who rejected his non-refoulement claim.  The application was brought within time.

1.3  On 6 July 2020, Deputy High Court Judge Bruno Chan dismissed the applicant’s application.  

1.4  Being 15 days out of time, the applicant took out an application on 4 August 2020 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 19 November 2020 rejected the applicant’s application for an extension of time to appeal.  

1.5  On 7 December 2020, the applicant by summons together with a supporting affirmation issued a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragrahs 3 to 8.  He lodged his written submissions on 2 February 2021.

1.6  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

2.  Briefly stated, the applicant is a Pakistani national.  He came into Hong Kong illegally on 5 July 2014.  He subsequently was arrested and raised a non-refoulement claim on 6 August 2014 based on his fear that he would be harmed or killed by the brothers of a woman whom he intended to marry.

3)  The Director’s Decision

3.  The Director decided against the applicant’s non-refoulement claim on 16 February 2017.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, Bill of Rights (‘BOR’) Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.  The applicant appealed against the Director’s Decision to the Board on 1 March 2017.  Oral hearing was conducted on 30 November 2017.  The Board dismissed the applicant’s appeal on 4 January 2018.  In gist, the Board rejected the applicant’s claim upon a finding of a lack of credibility on the applicant.  While the Board accepted that there may have been some level of intimidation from the brothers, the Board found that there was no reason for the brothers to pursue the applicant in different parts of Pakistan, or to employ gangs of people to look for him.

5)  Decision of the Judge

5.  In his decision dated 6 July 2020, the Judge held that the applicant provided no grounds in his Form 86 and supporting affirmation.  No error of the Board was shown.  In his decision dated 19 November 2020, the Judge held that there were no draft grounds of appeal in his summons and affirmation.  The reasons for the delay in making an application were unpersuasive given the lack of evidence and the applicant was young and healthy.  

6)  Legal principles

6.  In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

(4)  Prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1  The applicant was 15 days late when he filed summons in the lower court for extension of time to appeal.  The application’s explanation of having a fever and that he was concerned about the pandemic had no evidential support.

(2)  Prospect of the intended appeal

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

7.3  In the present application, the applicant in his summons simply stated that he wanted to challenge the Judge’s decision.  No particulars or explanations were provided.

7.4  In the applicant’s supporting affirmation, he stated that he received the decision after the deadline for making an application passed.  There are no intended grounds of appeal, nor any grounds on how the Judge fell into error.

7.5  In the applicant’s written submissions, he repeated factual matters of his case.  He made various personal opinions in his submissions unsupported by evidence.  He stated he wished to save his life.

7.6  The focus of an appeal in this Court is the correctness of the decision of the Judge.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)  Disposition

8.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 7 December 2020.

The applicant, unrepresented, acting in person