RE MD ZAKIR

CAMP 433/2022, [2024] HKCA 666

On Appeal From [2022] HKCFI 914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 433 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1870 OF 2018)

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DECISION

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

1.  On 31 July 2023, this Court handed down decision ([2023] HKCA 907) dismissing the applicant’s application to extend time to appeal the order of Deputy High Court Judge Bruno Chan given on 31 March 2022 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 27 October 2023, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time by around one month.

3.  Pursuant to the directions of the Registrar of Civil Appeals also dated 27 October 2023, the applicant was to lodge and serve on or before 10 November 2023 written submissions failing which he will be deemed to have abandoned his right to rely on written submissions and the matter will be considered by this Court based on the available materials. The applicant has not lodged or served written submission by the stipulated deadline.

4.  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.

5.  The background to this case and the applicant’s claim have been set out in our decision. We will not repeat them.

6.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

7.  The applicant’s present application is out of time by around one month. The applicant in the supporting affirmation simply stated in brief that he was out of time and he attached to his affirmation a copy of our decision together with certain evidence of marriage certificate, recognizance forms and police report without further explanation or particulars. According to Court record, our decision was sent by ordinary mail to the applicant’s last known address on 31 July 2023. The applicant cannot explain his delay.

8.  As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9.  The notice of motion stated the following:

‘ The High Court and the Court of Appeal dismissed my leave to apply for judicial review. I did not get justice. I want to go to the Court of Final Appeal for justice.’

10.  We are of the view that no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

Applicant, unrepresented, acting in person

CAMP 433/2022, [2023] HKCA 907

On Appeal From [2022] HKCFI 914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 433 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1870 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 7 September 2018, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 1870/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 24 August 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 30 August 2017 rejecting his non‑refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave on 31 March 2022.

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 14 April 2022). Being out of time for around 40 days, the applicant took out an application on 24 May 2022 before the Judge requesting an extension of time to appeal. The Judge on 28 September 2022 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. around 8 October 2022). On 19 October 2022, 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 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 an Indian national. He entered Hong Kong in August 2014 and was allowed to stay as a visitor but he overstayed. He raised his non‑refoulement claim on 13 September 2014 alleging that he would be harmed or killed by the family of a Hindu girl (Laxmi) whom he was in love with. The applicant is a Muslim.

3)  The Director’s Decision

6.  The Director decided against the applicant’s non‑refoulement claim. 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 (‘the Director’s Decision’).

4)  The Board’s Decision

7.  An oral hearing was conducted by the Board on 10 May 2018. The Board dismissed the applicant’s appeal and the Director’s Decision was affirmed. The Board held that it did not find that applicant’s evidence credible. It did not accept that the applicant and Laxmi were in a relationship. The Board did not accept the applicant’s contradictory, generalized and broad evidence. It did not accept that the applicant was threatened and physically assaulted by Laxmi’s relatives, or that they abused his family members. The applicant only sought refuge upon his arrest in Hong Kong in September 2014. The Board found there was no real risk of harm if the applicant was to return to India.

5)  Decisions of the Judge

8.  In his decision dated 31 March 2022, the Judge held that it was factually incorrect for the applicant to state that he was not provided with a chance for an oral hearing. It was a bare assertion without specifics or explanation when the applicant stated that the Board was not fair in not observing procedural fairness. The Judge held that the applicant already had the benefit of legal representation with duty lawyers before the Director. There was no error of law or procedural unfairness.

9.  In his decision dated 28 September 2022, the Judge did not accept the applicant’s explanation for his delay. The Form CALL‑1 was sent to the applicant’s last reported address without being returned undelivered. That the applicant has no money to pay for filing fee was not a proper explanation for non‑compliance of procedural rules. The Judge held that the applicant did not put forward any proper grounds of appeal or particulars of error in the Judge’s decision. There was no prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6)  Legal principles

10.  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

11.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days from the Judge’s decision to file an appeal. The applicant was late in making such application by around 40 days. This was significant. The applicant’s explanation that he had no money to pay for filing fee, or that he did not receive the decision without proper explanation were not accepted as valid explanations for the delay.

(2)  Prospect of the intended appeal

12.  In the applicant’s summons and affirmation, he submitted that the Judge should not have accepted the Board’s findings and that Judge did not consider all the applicable grounds. These are broad and vague assertions without explanations on how they relate to the applicant’s case. In the applicant’s written submissions, it cited case authorities generally used in non-refoulement cases without specifying how they relate to his case.

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

14.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave to apply for judicial review and extension of time for appeal.

15.  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

16.  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 19 October 2022.

Applicant, unrepresented, acting in person