MIAH MOHAMMAD SHAMIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

FAMV Nos. 110, 145, 188 and 401 of 2019

[2020] HKCFA 25

FAMV No. 110 of 2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 110 OF 2019 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CAMP NO. 116 OF 2018)

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FAMV No. 145 of 2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 145 OF 2019 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 386 OF 2018)

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FAMV No. 188 of 2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 188 OF 2019 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CAMP NO. 185 OF 2018)

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FAMV No. 401 of 2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 401 OF 2019 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CAMP NO. 61 OF 2019)

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(HEARD TOGETHER)

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REASONS FOR DETERMINATION

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The Appeal Committee:

1.  At the hearing, we dismissed these applications for leave to appeal to the Court for reasons which are now provided.

2.  The present applications were all listed for disposal pursuant to Rule 7 of the Court’s Rules.[1]  However, the Appeal Committee directed that there should be a consolidated oral hearing, inviting submissions from the parties regarding the following issues:

(a)     Whether on the true construction of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), an appeal lies to the CFA from the CA's refusal of an extension of time, thus refusing to entertain an appeal to the CA out of time from the decision of the CFI refusing leave to apply for judicial review (Question 1).

(b)   Whether it is reasonably arguable that the Applicants or any of them should be granted leave to apply for judicial review in the light of the fact that neither the Director of Immigration (“the Director”) nor the Torture Claims Appeal Board (“TCAB”) specifically addressed a possible ground based on Article 2 of the Hong Kong Bill of Rights (“BOR2”) in refusing their non-refoulement claims (Question 2).

3.  Pending the present hearing, the following developments occurred:

(a)    The Director considered all four applications in relation to BOR2 and, after giving the applicants an opportunity to make further representations, maintained his decisions rejecting their non-refoulement claims.

(b)   Only the 1^st and 3^rd applicants petitioned the TCAB against such further decisions by the Director.  The 2^nd applicant did not.

(c)    The 4^th applicant withdrew all her non-refoulement claims.  However she nonetheless lodged submissions in support of her being granted leave to appeal.

4.  Since the Director has now given due consideration to all the BOR2 claims, the issue identified in Question 2 by the Appeal Committee has become academic.  Ms Queenie Lau, who presented very helpful submissions on an amicus brief, did not support the grant of leave on that Question.  

5.  Accordingly, we refused all the applicants leave to appeal on Question 2.

6.  Having refused leave on the substantive BOR2 question, the issue of jurisdiction referred to in Question 1 also became academic. Whether or not an application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s refusal of an extension of time to appeal against the Court of First Instance’s refusal of leave to apply for judicial review is legally competent does not matter in the present case since leave is in any event refused.

7.  A line of authority suggests that appeals against such a refusal of an extension of time by the Court of Appeal are not susceptible to further appeal.[2] A contrary view was taken by the Appeal Committee in Lau Luen Hung Thomas v Insider Dealing Tribunal.[3]  Resolution of the difference will have to await a more appropriate occasion.