RE EJAJ AHMED MOHAMMED

CAMP 134/2021

[2021] HKCA 1571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 134 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 299 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 26 February 2018, the applicant issued his application for leave for judicial review by Form 86.

2.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 12 April 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 5 March 2015 rejecting his non-refoulement claim.  The application was brought out of time by around seven and a half months.

3.  On 11 December 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for extension of time to apply for leave for judicial review and dismissed his application for leave to apply for judicial review.  

4.  The applicant had 14 days to appeal.  Being out of time to appeal, the applicant took out an application on 29 September 2020 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 13 April 2021 rejected the applicant’s application for an extension of time to appeal in his extension decision.

5.  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.  On 29 April 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The application is late by nine days. 

6.  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 and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

7.  Briefly stated, the applicant is an Indian national.  Before the Unified Screening Mechanism (‘USM’)  was in place, he lodged a torture claim on 12 December 2008 but he later withdrew his torture claim (‘First Withdrawal’).  On 16 July 2012, he applied to re-open his torture claim.  Upon commencement of USM on 3 March 2014, his torture claim was taken to be a non-refoulement claim and was assessed under the USM.

8.  On 14 August 2014, the applicant was served with a non-refoulement claim form (‘NCF’)  and was briefed on the consequences of his failure to return his NCF.  On 22 August 2014, he declined duty lawyer service and withdrew his non-refoulement claim (‘Second Withdrawal’).

9.  On 4 and 10 September 2014 by way of letter and written representation, the applicant applied to re-open his non-refoulement claim.  The Immigration Department asked for evidence and explanation for it to consider re-opening his case, and on 10 October 2014, his request for re-opening was allowed and he was required to return his NCF on or before 7 November 2014. On 16 October 2014, the Director was informed that the applicant was represented by the Duty Lawyer Scheme (‘DLS’).  The Director on 31 October 2014 informed the DLS that the NCF was required to be returned on or before 7 November 2014.  The applicant failed to return the NCF by the stipulated time and his claim for non-refoulement was withdrawn.

10.  On 24 December 2014, the applicant applied to re-open his non-refoulement claim.  He was asked to provide evidence that he did not return his NCF because it was due to circumstances beyond his control.  In January 2015, the applicant provided information in support, but having considered the circumstances and reasons, the Director refused to re-open the applicant’s non-refoulement claim.

3)  The Director’s Decision

11.  The Director decided against the applicant’s application to re-open his non-refoulement claim on 5 March 2015.  The applicant was required to provide information with relevant documentary evidence to support his request to re-open his non-refoulement claim.  Despite being duly briefed of the consequences of his failure to return his NCF, the applicant did not return his NCF.  It was only after the applicant was arrested by the police in December 2014 that the applicant made the request to re-open his non-refoulement claim.  The applicant’s excuse for not having transportation money to deal with his claim was not accepted as transportation money was provided for by the government in the financial assistance to the applicant.  The applicant was allowed twice to re-open his claim but he abandoned his claim.

4)  The Board’s Decision

12.  The applicant appealed against the Director’s Decision to the Board.  An oral hearing was conducted on 27 June 2016 but the applicant was absent.  The Board proceeded with the hearing on the basis of the documents provided.  In gist, the Board found that the reasons stated by the applicant to the Director to re-open his case did not fulfil the requirement or provide sufficient information for the Director to consider re-opening the matter.  The applicant attended a briefing session with an interpreter present and was told of his duty to return his NCF and the consequence of a failure to do so.  It was the applicant who failed to follow up his claim with his duty lawyer.  The lack of transportation money argument was not accepted as the applicant was financially supported by the government which include transportation fees.  The Board dismissed the applicant’s appeal and the Director’s Decision was confirmed.

5)  Decisions of the Judge

13.  In his decision dated 11 December 2019, the Judge had in detail set out the relevant statutory provisions under Part VIIC of the Immigration Ordinance, Cap. 115 (‘Ordinance’).  He found that no grounds were contained in the applicant’s Form 86, and in his supporting affirmation he merely repeated his claim that his life was in danger.  The applicant’s filing of his Form 86 was also outside of the three-month time requirement from the date of the Board’s Decision under Order 53, Rule 4 of the Rules of High Court. He was around seven and a half months late, which was a very substantial lateness.  The Judge held that the applicant’s sole reason of being detained at Castle Peak was by itself not enough to justify the serious delay.  There was also a lack of any merit in his claim as he did not provide any grounds for judicial review.  No further circumstances were shown to satisfy the statutory requirement for re-opening his case.  No fault was found in the Director’s Decision and the Board’s Decision.     

14.  In his decision dated 13 April 2021, the Judge held that the applicant’s more than nine months’ delay in making his application for extension of time to appeal was a very substantial delay.  He held that the applicant could not identify when he was sentenced to prison or show proof in support of the assertion for his delay.  He held that more than nine months of delay was not justified even when the applicant was in prison.  More importantly, the Judge held that there was no valid or proposed grounds of appeal by the applicant.  There was no showing of any error made by the decision makers.  

6)  Legal principles

15.  In considering whether to extend time, 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

16.  The Judge was correct to rule that the delay in lodging the appeal was significant and the applicant failed to explain his delay.  Importantly, the focus should be on the merits of the intended appeal.

(2)  Prospect of the intended appeal

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

18.  The applicant in his summons and affirmation stated that the Judge’s decision was unfair, he was not given an opportunity to clarify his case, he did not have the appropriate means, or he did not receive the decision on time.  No particulars nor explanations were provided on any of the above bare allegations.

19.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)  Disposition

20.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 29 April 2021.