RE MOHAMMAD ESHAN

CAMP 165/2019

[2020] HKCA 230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 165 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1138/2017)

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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 for leave to appeal against the decision of Campbell-Moffat J given on 27 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 dated 29 March 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 10 March 2016 and 8 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 18 April 2014.  He overstayed and was arrested by the police on 23 May 2014.  He lodged a non-refoulement claim on 28 May 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party and the police in India.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 form.

4.  By a Notice of Decision dated 10 March 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 8 February 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 20 February 2017, the Board dismissed the appeal on 29 March 2017 (“Board’s Decision”).  At [36] of the Board’s Decision, the Board found that the applicant was a wholly unreliable witness.  The Board’s Decision covered all four grounds for non-refoulement protection. 

The judge’s decision

7.  The applicant filed a Form 86 on 22 December 2017 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 22 December 2017, the applicant exhibited the relevant documents and attached 2 sheets of paper entitled “Grounds for Petition/Appeal in the High Court” where he advanced the following grounds:

(1)  the applicant is fearful of being killed or tortured upon his return;

(2)  the Board failed to meet the high standard of procedural fairness in that there was no “fair oral hearing” to challenge the applicant’s credibility and the Board took account of irrelevant consideration;

(3)  the Board failed to give proper reasons for the decision; and

(4)  the Board did not take into account all the facts in evaluating the risks faced by the applicant and the issue of internal relocation.

9.  In fact, the applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  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 [5] to [8] of the CALL-1 form:

“5. 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 22 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 27 March 2017. The Notice of Appeal should therefore have been submitted by 27 June 2017. It was just short of six months late. The Notice of Decision was sent to the applicant’s registered address; the same address he relies upon for these proceedings. The applicant has 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.

6. In this case the applicant has not offered any explanation for this delay. In view of that omission, he must satisfy the Court that there are real prospects of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted. Given the following findings, the latter need not be considered.

7. There is no reason at all before the court as to why an extension of time for leave to apply for judicial review should be given. The applicant’s claim as explained above is not reasonably arguable and does not have a realistic prospect of success. The applicant was considered a ‘wholly unreliable witness’ by the Adjudicator who dealt with his case in a wholly proper way. The applicant’s grounds of appeal mirror almost exactly those received by this court in respect of other leave applications and bears little resemblance to, or connection with, the hearings in question. It has very obviously been amended to add the applicant’s nationality, the relevant dates and the name of the Adjudicator. Grounds of this kind are to be deprecated. In any event, for the reasons given above, this application is dismissed as being out of time.

8. Where the applicant intends to appeal this refusal to grant leave to extend time, he must appeal this decision to the judge against whose order his appeal is sought, within 14 days of the date of this order, in accordance with section 14AA of the High Court Ordinance, Cap 4 and Order 59 rule 2B Rules of the High Court.”

Application for extension of time to appeal and grounds for appeal

11.  By a summons dated 4 July 2019, the applicant sought extension of time for leave to appeal.  His application was dismissed by Campbell-Moffat J on 12 July 2019.

12.  By a summons dated 18 July 2019, the applicant renewed the application before this court.  In the summons he stated that “I would like to inform court my life is danger in my origin country in India that’s why I cannot take risk in my life could you please save my life from the order herein of the [judge] refusing to extend time for the Applicant’s application for leave to apply for judicial review”.

13.  In the affirmation of the same date, the applicant deposed that:

“I am the applicant herein in the order give to court a more complete picture about my case my life is danger’s that’s why I cannot take risk in my life could you please save my life I would like to adduce documents decision from High Court Decision made [by the judge] could you please see the exhibit ‘A’”…

14.  In his skeleton submissions dated 1 August 2019, the applicant recalled the events allegedly leading up to his claim and submitted that:

(1)  it is difficult for him to get justice from Indian authorities because he belongs to a Muslim family; and

(2)  his enemies are still looking for him and his elder brother advised him not to come back.

Discussion

15.  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.  As the judge’s refusal of an extension of time to bring judicial review proceedings is an interlocutory judgment, leave to appeal is required.

16.  The applicant was late in applying for leave to appeal and he did not provide any explanation for the delay in the documents filed for the application before this court.  In the court below, the applicant claimed that he did not receive the CALL-1 form and that he was misled by the Immigration Department.  These are bare assertions by the applicant and we do not accept that the applicant has provided a reasonable explanation for his delay.  We nonetheless go on to consider the merits of the intended appeal.

17.  The grounds of appeal set out in the submission do not identify any error on the part of 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.  As we have also frequently stated a judicial review does not function as a further appeal against the decision of the Board.  Still less does an appeal to this court.  In any event, having examined the judge’s decision, we can see no error in it.

18.  We therefore do not see any prospect of success in the intended appeal.  The summons of 18 July 2019 is dismissed accordingly.

19.  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.