RE BOINEM

HCAL 1852/2018

[2020] HKCFI 3123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1852 OF 2018

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DECISION

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Background

1.  On 14 May 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant extension of time and leave to the applicant to apply for judicial review (“the Judge’s order”) against the decisions of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 5 May 2017 and 2 August 2018.  The Board in its decisions upheld the decisions of the Director of Immigration (“the Director”) dated 28 May 2015 and 5 June 2017 rejecting the applicant’s non-refoulement claim.

2.  The Judge refused to grant extension and leave to the applicant to apply for judicial review for reasons stated in [17-22] of his decision (Form CALL-1).  Significantly the Judge found that the applicant’s intended application for judicial review had no reasonable prospect of success.  He refused to grant extension of time for the applicant’s late application against the Board’s first decision dated 5 May 2017, and refused leave for judicial review against the Board’s second decision dated 2 August 2018.

3.  By a summons filed on 8 June 2020, the applicant applied for “leave to appeal” against the Judge’s order.  On 14 July 2020, the decision of H v Director of Immigration [2020] HKCFA 22 was handed down by the Court of Final Appeal.  The CFA held that the refusal by a judge of an extension of time to make an application for judicial review is part and parcel of a refusal to grant leave to apply for judicial review.  Therefore, the Judge’s order is appealable as of right by reason of Order 59, rule 21(1)(g): paragraph 42 of the judgment.  There is no further need under section 14AA of the High Court Ordinance (Cap 4) for an applicant to seek leave to appeal before the Court of First Instance judge before he/ she may appeal directly.

4.  Given the circumstances, I will treat the applicant’s summons application as an application for extension of time to appeal against the Judge’s order.

5.  However, the 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of High Court ended on 28 May 2020.  She was therefore late by 11 days with her intended appeal when she filed her summons.

Discussion

6.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

7.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

8.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

9.  In the present case, the applicant was late by 11 days. As the delay was not significant, I would focus on the more important issue of the merit of the intended appeal.

10.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Assessment of evidence and evaluation of risk are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.

11.  In his decision dated 14 May 2020, the Judge considered each and every ground of review raised by the applicant and found no merits in any of the grounds and gave reasons for it.

12.  In my view, the Judge properly reviewed the decisions of the Board and the Director with rigorous examination and anxious scrutiny.  The Judge demonstrated in his consideration that he had applied the relevant legal principles correctly and considered all the relevant issues reasonably and properly.

13.  The applicant has not identified any grounds of appeal or errors in the Judge’s decision.  None could be ascertained from the papers or at the hearing.

14.  Having considered the materials before me, I am of the view that the findings by the Board and the Judge’s observations are justified.  I share the Judge’s view that the applicant’s application for judicial review had no reasonable prospect of success and that leave to apply for judicial review should be refused.

Conclusion

15.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time, and the summons dated 8 June 2020 taken out by the applicant is dismissed.