RE BEPARI LITON

CAMP 63/2017

[2018] HKCA 78

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 63 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 175 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock on 10 November 2017 refusing leave to the applicant to apply for judicial review. The applicant came to Hong Kong on 16 June 2014 illegally and was arrested on the same date by the police. He lodged a non-refoulement claim on 19 June 2014. The Director decided against his claim on 23 May 2016, supplemented by a further decision of 3 February 2017. He appealed to the Torture Claims Appeal Board and the Board, after hearing him, dismissed the appeal on 19 April 2017. The intended judicial review was in respect of that decision of the Board. The Board rejected the non-refoulement claims of the applicant in respect of torture risk, BOR 3 risk, persecution risk and BOR 2 risk.

2.  The judge refused leave on 10 November 2017 after hearing the applicant on 14 September 2017.  After referring to the background of the case and the decision of the Director and the Board at some length, she gave following reasons in refusing leave at [18] to [21] of the Form CALL-1:

“ 18. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director and the adjudicator’s decision to be without fault. They analysed the material, claims and evidence carefully, logically and with caution. They applied the correct burden and standard of proof. I found no substance in the grounds of this application. The applicant had nothing to add or to say during the hearing for leave except that he wanted to appeal the dismissed BOR 2 claim again.

19. In the grounds for leave the Director and the adjudicator are accused of failing to conduct sufficient enquiry into the relevant COI conditions. There is no substance to this ground, the Director sets out in full what he referred to and considered relevant. It is up to date, ample, objective, relevant and of international standard. The adjudicator dismissed the claim based on credibility and therefore did not go into COI material. There was no necessity on his part to do so. The same applies for considering the concept of extended state acquiescence and internal relocation.

20. I do not find any ground that shows there was an error of law by the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

21. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

3.  According to court record, the CALL-1 form and the sealed order of the judge were sent by post to the applicant on 10 November 2017.

4.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.

5.  On 5 December 2017, he applied by summons for extension of time to appeal.  His application was supported by an affirmation.  In the affirmation, he said he had changed his address and despite his notification of the change the CALL-1 form and the order were sent to his old address.  He was then notified of the outcome by his friend living at his old address.

6.  We have checked the lower court file and we cannot find any notification of change of address by the applicant. 

7.  He did not produce any draft grounds of appeal in his summons or affirmation.  Nor did he state in what respect the judge had erred in coming to her decision.

8.  Notwithstanding directions by the Registrar of Civil Appeals (sent to his new address as stated in the summons of 5 December 2017) requiring him to lodge submissions in support of his application and the reminder and unless order of 8 January 2018, he did not do so.   

9.  By reason of Order 59 Rule 2A and Rule 14A(1), this Court can determine an application for extension of time to appeal without an oral hearing.  The applicant had been notified of such possibility by the Registrar of Civil Appeals in the directions of 11 December 2017 requiring him to lodge his submissions.

10.  The Court therefore proceeds to process his application based on the materials placed before us.

11.  In the absence of documentary evidence supporting his notification of change of address, we do not believe he had given such notification to the court.  Hence the delay between 24 November and 5 December 2017 is not excusable.  

12.  In the absence of a cogent explanation for the delay, extension of time should not be granted under the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217 of 2015, 22 January 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 November 2016. 

13.  As we said, he did not include any draft grounds of appeal or produce anything to this Court in the present application to support the merit of his intended appeal. 

14.  Having read the full decision of the Board, we are of the view that it was perfectly open to the Board to come to its conclusions on the claim of the applicant including the lack of real risk of harm.  For the reasons given in the decision, the Board was also entitled to form the view that the applicant’s story was incredible.       

15.  When one reads the judge’s observations in the CALL-1 Form together with the detailed Reasons given by the Board in its Decision of 19 April 2017, we agree with the judge’s conclusion that the intended judicial review is not reasonably arguable.  We do not see any errors of law or procedures in the proceedings before the Board.  We agree with the judge that leave to apply for judicial review should not be granted.

16.  For these reasons we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 5 December 2017 is dismissed accordingly.

17.  We are of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.