RE ZULFIQAR ALI

CAMP 153/2022

[2023] HKCA 388

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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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 17 October 2022, this Court (Kwan VP and Cheung JA)  gave the decision dismissing the applicant’s extension of time to appeal against the decision of Deputy High Court Judge K W Lung given on 28 October 2021 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, a supporting affirmation both filed on 5 December 2022 and a written submission lodged on 19 December 2022, for leave to appeal against our decision to the Court of Final Appeal 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 glaringly late.  According to section 24 of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’), the applicant’s notice of motion ought to have been filed with the Court within 28 days of our extension decision.  The applicant is around three weeks late.  The applicant stated in his affirmation that his notice of motion was ‘out of scheduled time’. No further details were provided.  This is a bare allegation unsupported by any explanation.  We will not accept the applicant’s reason for the delay.

5.  The applicant’s notice of motion stated the following :

‘ Director of Immigration and Torture Claims Appeal Board dismissed my nonrefoulement claim. The High Court and the Court of Appeal dismissed my leave to apply for judicial review. All this judgments are not good for me. I want to go to C.F.A.’

6.  In the applicant’s written submissions, he stated that he has ‘life threat’ in his country.  He stated that the Director, the Board, the High Court and the Court of Appeal rejected his claim.  He stated that there were errors that the Court could not find.

II.  Legal principles

7.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  (‘HKCFAO’)  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.

III.  Our view

8.  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 HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his documents.

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

IV.  Disposition

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

Applicant, unrepresented, acting in person

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)

____________________

____________________

____________________

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.