RE SHERPA PEMBA

CAMP 147/2020

[2021] HKCA 728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 147 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 1115/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Campbell-Moffat J given on 16 November 2018 refusing to grant extension of time for his application for leave for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 17 August 2016 and an unidentified decision of the Director of Immigration (“Director”).

Background

2.  The procedural history to this case has been summarized by the judge at [2] – [5] of CALL-1 Form:

“2. The Applicant first made a Non-refoulement Claim (‘NRF’) by way of written representation on 23 October 2013. On 14 December 2014, the Applicant had been provided with the ‘Notice to Persons Making a Non refoulement Claim’, which includes a warning that the claim will be deemed withdrawn if the Applicant fails to return the NRF within 28 days of a request to do so. On 15 December 2014, he had the benefit of representation from the Duty Lawyer Service (‘DLS’). By a letter dated 31 December 2014, he was requested to submit his NRF form within 28 days i.e. by 28 January 2015. He was reminded of that request on 21 January 2015. On 28 January 2015, the DLS requested an extension of 28 days to submit the NRF resulting in a letter of 29 January 2015, requiring the Applicant to now return his completed NRF by 18 February 2015. He did not do so and by letter of 3 March 2015, the Applicant was informed that his claim had been deemed withdrawn as of 19 February 2015. Included in that letter was a warning that any application to re-open his claim would need to be supported by sufficient evidence in writing showing that he had not been able to comply with the requirement due to circumstances beyond his control.

3. The Applicant did nothing for four months. On 31 August 2015, he made an application to re-open his claim. That application did not contain any evidence as to why the original NRF had not been submitted nor was there anything to suggest that his failure to submit the NRF had been due to circumstances beyond his control. The Applicant relied upon the facts founding the basis of his original claim. By a letter of 23 September 2015, the Director required the Applicant to provide information in support of his application to re-open his claim. Because of a lack of response, a further letter dated 23 October was raised and was provided to the Applicant at the time he next reported to the Mau Tau Kok Report Recognisance Office (‘MTKRRO’). He did not respond to that request despite having been recorded as receiving the letters of 23 September and October. Therefore, by way of a letter dated 7 December 2015, the Applicant’s request to re-open his claim was refused and he was informed of his right to lodge an appeal but that he must do so within 14 days of 7 December.

4. The Applicant lodged an appeal on 13 February 2016, which was out of time. He lodged a Notice of Appeal Out of Time on 18 May 2016. Thereafter the TCAB requested a written explanation, with evidence in support of the reasons for being out of time, as well as the reasons for failing to submit the NRF within time or at all. On 25 May 2016, the Applicant submitted a written statement stating that he had changed address (the specifics of which were vague) and therefore did not receive any letters from the Director and asked for a further NRF to be sent to him. This was patently untrue. The Applicant’s Grounds of Appeal referred to his original claim but also maintained that the late filing of the Notice of Appeal was due to an injury and his subsequent hospitalisation as well as the hospitalisation of his fiancée. He provided evidence that he had been admitted to Queen Elizabeth Hospital (‘QEH’) on 3 December 2015 and discharged the next day. He appears to have suffered injuries which required suturing. This date covers the period when he should have received the letter dated 7 December 2015 which enclosed the notice to appeal within 14 days but does not account for the fact that he had received the two previous letters of 23 September and October requiring him to provide information when he was clearly fit to do so. At that time even if the Applicant had subsequently changed his address but had not informed the Director, he had already been served with the letters at MTKRRO. The Adjudicator found that the Applicant had not complied with section 37ZE(2). He had failed to supply satisfactory evidence in support of his application both as to the re-opening of his claim and as to his application to be allowed to appeal out of time.

5. For completeness, subsequent to the Applicant lodging his appeal against the Decision of the Director dated 7 December 2015, he made a further application to submit an NRF on 6 July 2017, 30 August, 18 September, 10 October and 17 October 2017, which were refused by way of letters dated 25 August and 26 October 2017.”

3.  The Board dismissed his appeal on the ground that the requirements under sections 37ZE(2) (re-opening of a torture claim that has been withdrawn by a claimant) and 37ZT(3) (late filing of notice of appeal) of the Immigration Ordinance, Cap 115 have not been fulfilled.  The Board held at [17] that the applicant failed to provide satisfactory evidence to support the re-opening his non-refoulement claim and at [21] that the late filing of Notice of Appeal was either due to a deliberate effort to drag out his claim or a complete disregard of the rules laid down for lodging an appeal.

The judge’s decision

4.  The applicant filed a Form 86 on 20 December 2017 against an unidentified decision of the Director, which contained no ground for seeking relief.

5.  In his affirmation in support of the leave application dated 20 December 2017, the applicant deposed that:

“The Board did not consider following:

(1) The appellant was not educated

(2) No lawyer was provided to me for advice

(3) The Board decided the case on assumptions

(4) In absence of evidence to prove my case the Board cannot infer that the appellant has no case.”

6.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

7.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the Board, the judge refused to extend time for applying for leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [6] to [9] of the CALL-1 Form:

“6. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review of the decision of the TCAB, on 20 December 2017. That also is grossly out of time.

7. In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review. This was dated 20 December 2017. Under Order 53 rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. Where the relief sort is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from 17 August 2016 and should have been filed by 17 November 2016. The Applicant has yet again submitted no explanation for his delay and has not sought leave for an extension of time. I have never the less considered the principles applicable to granting such an extension if an application had been made and those are 1) the length of delay; 2) the reasons for delay; 3) the prospects of success in the intended appeal; and 4) the prejudice to the putative respondent if extension of time were granted: Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015).

8. In this case the Applicant was late by over eight months and has not offered any explanation for this delay. I have also considered whether he could satisfy the Court that there are real prospects of success in his intended leave application against the decision of the TCAB. The Applicant relies for this application upon his lack of education, representation or opportunity to have a hearing. There is no automatic requirement to representation or for a hearing when an applicant fails to file documentation within the prescribed time limits. Nevertheless, he was asked by the TCAB to provide his explanation and yet again failed to do so. There is no reason at all before the court today as to why an extension of time for leave to apply for judicial review should be given either.

9. The Applicant’s claim as explained above is not reasonably arguable and does not have a realistic prospect of success.  Accordingly, this application is dismissed as being out of time.”

Grounds for appeal

8.  At [10] of the CALL-1 Form, the judge held that if the applicant wished to appeal against her judgment, he would need to seek leave to appeal, in accordance with s14AA of the High Court Ordinance, Cap 4 and Order 59 rule 2B of the Rules of High Court. 

9.  It has recently been held by the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22 that an applicant did not need to seek leave under Section 14AA of the High Court Ordinance (Cap. 4) to appeal to this court in respect of a refusal of extension of time to bring an application for leave to judicial review. 

10.  By a summons dated 6 July 2020, the applicant sought leave to appeal out of time.  The judge treated the application as an application for leave to appeal out of time and dismissed the application on 26 August 2020.

11.  By a summons dated 31 August 2020, the applicant renewed his application before this court.  In the affirmation in support filed on the same day the applicant contended that:

“…I am unrepresented and did not have access to any legal advice.

I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review…”

12.  In his skeleton submissions dated 20 November 2020, the applicant referred to a number of authorities on high standard of fairness and section 37ZT of the Immigration Ordinance without explaining their relevance to the application. He also submitted that the Board failed to properly assess his credibility.

Discussion

13.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

14.  Because the applicant was late in bringing the intended appeal, leave to appeal out of time is required.  We have considered the reasons given by the applicant for his delay in bringing the intended appeal, as summarized by the judge at [6] of CALL-1 Form.  Like the judge, we are of the view that it is the applicant’s responsibility to keep his address in the court’s record up-to-date.  We therefore do not accept that the applicant has provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

15.  As for the ground based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.

16.  As for the other grounds of appeal advanced in the written submission, they are apparently directed towards the decisions of the Board and Director but not to the decision by the judge.  They are therefore not viable grounds of appeal. As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

17.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 31 August 2020 is dismissed accordingly.

18.  We are also 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.