RE SEIYED IBRAHIM MOHAMED ANVER

CAMP 239/2022, [2023] HKCA 547

On Appeal From [2021] HKCFI 3882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 239 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 13/2019)

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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 DHCJ P Li (“the Judge”) dated 30 December 2021 refusing to grant leave to the applicant to apply 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 (“the Board”) dated 8 November 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 28 May 2018 refusing to re-open the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Sri Lanka.  He entered Hong Kong on 3 January 2005 as a visitor, but he overstayed and was arrested by the police.  On 29 November 2005, he was interviewed by the Immigration Department, whereupon he indicated that he would like to raise a torture claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by an army officer in Sri Lanka.  The details of the applicant’s claim have been summarised by the Judge at [1] to [3] of his decision (“the CALL‑1 Form”)[1].

4.  The applicant was interviewed by the Immigration Department numerous times during the period from 21 December 2005 to 9 September 2008 regarding his torture claim, however, it appears that no claim form was formally submitted by the applicant and the outcome of his torture claim is unknown (see [12] of the CALL-1 Form).

5.  It also appears that the applicant later raised a non-refoulement claim (on all applicable grounds other than torture), notwithstanding that no non-refoulement claim form was filed by him. 

6.  By a letter sent to the Immigration Department on 6 December 2016, the applicant applied to withdraw his “pending non-refoulement claim” and stated that he would like to return to his home country.  By a reply dated 7 December 2016, the Director confirmed receipt of the applicant’s written notice of withdrawal of his non-refoulement claim, and stated that no further action would be taken in respect of his case.

7.  Subsequently, by a written request to the Director dated 10 May 2018, the applicant applied to re-open his non-refoulement claim on the ground that he had a “problem in Sri Lanka” and therefore he could not return.  In light of this request, the Director by letter dated 15 May 2018 invited the applicant to provide further information and evidence on, inter alia, any change of circumstances since the withdrawal that could not reasonably have been foreseen by him, or why it would be unjust for the Director not to re-open his claim.  The applicant however, did not provide the information or evidence as requested.

8.  By a Notice of Decision dated 28 May 2018, the Director decided not to re-open the applicant’s non-refoulement claim by reason that there was no evidence to indicate that there had been any special circumstances since the withdrawal which were unforeseen by him, and which would render a refusal to re-open his claim unjust.

9.  The applicant appealed to the Board.  On 8 November 2018, the Board affirmed the Director’s Decision and dismissed the appeal.  

The Judge’s decision

10.  The applicant filed a Form 86 on 3 January 2019 seeking to judicially review the Board’s Decision, without setting out any grounds.

11.  In his supporting affirmation, he merely requested an oral hearing before the Judge for his application for leave.

12.  After hearing from the applicant at an oral hearing on 18 October 2021, summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [9] to [15] of the CALL‑1 Form:

“9.  The applicant filed a leave application on 3/1/2019. In his affirmation, he requested for an oral hearing.

10.   This court fixed a hearing on 18/10/2021. During the hearing, the applicant confirmed that he had withdrawn the application in 2016. He had not responded to the request for further information from the Director in 2018. There was no explanation as to this failure. He stressed that his brother would sponsor him to go to Australia but his problem in Sri Lanka had not been solved. He could not go back.

11.   The applicant indicated that he had submitted a claim form in 2005 to the Director. This court asked him to file a copy of that form to this court within 2 weeks. This court made enquiry with the Director. It transpired that there was only a record of interview made on 29/11/2005. There was no NCF or a document of similar nature.

12.   This court received a bundle of hand-written records of interview on 23/12/2021 from the applicant.  It transpired that he was interviewed a number of times from 21/12/2005 to 9/9/2008. These records were mainly clarifications of the answers he made in the previous occasions. They were related to the factual background of his torture claim. They were not a NCF or a claim form. It is not clear what was the outcome of his torture claim.

13.   In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational.  The finding of facts is the duty of the TCAB.  In general, this court would not interfere.

14.  The applicant confirmed that he had withdrawn his torture claim in 2016. He had not filed further information in support of the application to re-open his claim in 2018. He had not complied with the requirement of s.37ZE (2) of the Immigration Ordinance, CAP 115. I agree with the decision of the TCAB and the Director.

Conclusion

15.   In my judgment, there is no error of law or procedure. I agree with the TCAB decision. It is rational. The intended judicial review is not reasonably arguable. There is no prospect of success. I refuse leave for the intended judicial review.”

The present application for extension of time to appeal

13.  The applicant’s address as stated in his Form 86 was at Room C, Flat E, 1/F, Man Hoi Mansion, 80-82 Cheung Sha Wan Road (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 30 December 2021, and were not returned undelivered.  

14.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 30 December 2021.

15.  The applicant thereafter took out a summons in the Court of First Instance on 25 April 2022 seeking an extension of time to appeal, in which his address was stated to be the Address.

16.  In the summons and his supporting affirmation filed on the same date, he stated that he was dissatisfied with the Judge’s decision, that he needed time to obtain certain documents in support of his case and that he did not receive the court’s letter in time. 

17.  The applicant’s application to appeal out of time was dismissed by DHCJ To on 24 June 2022[2].

18.  By a summons filed on 11 July 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and in his supporting affirmation, the applicant stated that his life was threatened by his enemies in Sri Lanka and that he needed to submit certain supporting documents (without specifying what these documents were). He also claimed that he had not been given an oral hearing in the court below. As his appeal against the TCAB decision had been the subject of an oral hearing, we take it that the occasion on which no oral hearing was held was the consideration by Deputy Judge To of his application for an extension of time to appeal.

19.  In his written submissions lodged on 20 July 2022, the applicant repeated the purported dangerous situation in Sri Lanka and his complaint that he did not have an opportunity to submit relevant documents in support of his claim. He also requested for time (3 months) to submit those documents.  Although more than three months have since elapsed, no further documents have been forthcoming from the applicant.

Discussion

20.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

21.  As noted above, the Judge’s Decision was sent to the last known address of the applicant and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

22.  There is no explanation on the part of the applicant as to how and when he had come to learn of the Judge’s decision dated 30 December 2021.

23.  In the circumstances, we reject the applicant’s explanation for the delay in lodging the intended appeal.

24.  We have nonetheless proceeded to consider the merits of the intended appeal.

25.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

26.  We have examined the Director’s and the Board’s Decisions, and we are of the view that it was clearly open to the Director (and the Board), upon the voluntary withdrawal of the non-refoulement claim by the applicant, to refuse to re-open his case in the absence of any additional information or evidence provided by him pursuant to section 37ZE(2) of the Immigration Ordinance, Cap. 115.

27.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

28.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

29.  Finally, as to the applicant’s request for time to submit new documents, we decline to entertain such a request, and would not have considered any further documents put forward (although in the event none were submitted) for the following reasons: (i) the applicant failed to identify the nature and relevance of such documents; (ii) he has had ample opportunities to acquire and submit the documents from as early as the application for leave for judicial review heard before the Judge; and (iii) the documents not having been submitted for consideration by the Judge, it is not the practice of this court, save in exceptional circumstances (none being apparent here), to allow new evidence to be adduced at this stage.

30.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 11 July 2022 is accordingly dismissed.