SHEIK MD MOKTER v. TORTURE CLAIMS APPEAL BOARD

HCAL 44/2017

[2019] HKCFI 710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 44 OF 2017

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J U D G M E N T

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1.  On 22 December 2017, this Court (Hon Yau J) handed down a judgment by way of CALL-1 Form, dismissing the Applicant’s application for leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) which rejected his non-refoulement claim. For the sake of clarity and convenience this is referred to as the first application of the Applicant.

2.  The facts and the issues in the application, as well as the reasons of the Court in refusing to give leave to the Applicant are set out in the judgement and the Court is not going to repeat them here. 

3.  According to Order 53 rule 3(4) of the Rules of High Court the Applicant has 14 days to appeal against the decision of the Court which time expired on 5 January 2018.  By a summons dated 9 September 2018 the Applicant applied for leave to lodge an appeal out of time. 

4.  It has been held in a number of authorities, such as Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134 and Wong YukManv Ng Leung Sing & Anor [2016] HKCU 157, that in considering whether to extend the time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to:

(1)  the length of the delay;

(2)  the reasons for the delay;

(3)  the prospect of the intended appeal; and

(4)  the prejudice to the putative respondent if extension of time was granted

5.  In this case the Applicant was late by more than 8 months.  He explained in his affirmation that as he was unable to read he did not know that the CALL-1 Form had been sent to him until a friend of his saw the Form about 20 days later and handed it to him.  Although he did not receive the CALL-1 Form in time the Immigration Department had told him that his application had been refused by the court.  The Department had also threatened to detain him and send him back to his home country. 

6.  The Applicant was scared, but he had no time to seek legal advice.  On the ill advice of his friend he filed a fresh Form 86 to make a second application for leave to apply for judicial review of the decisions of the Director and the Board.  This is referred to as the second application of the applicant which, according to court record, was given the case number HCAL 941/2017. 

7.  During the hearing of the present application for leave to appeal out of time on 29 November 2018, the Applicant agreed that the CALL-1 Form had been sent to him in form of a letter at the address given by him to the Court. He was, however, unable to explain why he was not aware that a letter had been sent to his address even if he could not read.

8.  When he was asked by the Court what he did after receiving the CALL-1 Form he at first said that he had done nothing.  On being further questioned by the Court he changed to say that as he was uneducated he did not know he could lodge an appeal and he had instead made the second application.  This is obviously not consistent with what he said in his affirmation. 

9.  It should be pointed out that the Form 86 of the Applicant’s second application was dated 23 November 2017 which was almost 1 month before the judgment of his first application was handed down and posted to him.  That is to say he made his second application even before the result of his first application became known.  It follows that he could not have made the second application because the Immigration Department had threatened to detain and repatriate him subsequent to his first application being refused by the Court.  He also could not have made the second application because of the dismissal of his first application.  He no doubt had told a pack of lies in his affirmation and in the hearing. 

10.  The judgment in the second application of the Applicant was handed down on 7 September 2018 and posted to the Applicant.  The Applicant made his present application for leave to appeal out of time on 9 September 2018 which was only 2 days later.  Due to the close proximity of the 2 dates it is quite obvious that the application for the time extension had been motivated by the refusal of the second application by the court.  It also shows that the Applicant was in fact able to receive without any delay a letter posted to him at his address, contrary to what he claimed in his affirmation. 

11.  The explanations given by the Applicant for the delay are not only untruthful but also do not make sense.  According to the chronology of events he should receive the CALL-1 Form regarding his first application after he had filed his second application.  When he came to know that his first application had been refused by the Court his natural response, despite having submitted the second application, would be to find out what action he could take.

12.  He was able to follow the correct procedure to take the decisions of the Director and the Board to the Court of First Instance for judicial review.  It is simply impossible that he would fail to find out he could apply for leave to appeal against the decision of the Court.  The delay of 8 months is totally unreasonable and the reasons given by the Applicant are untenable. 

13.  As pointed out above, one of the factors to consider in an application for an extension of time is the prospects of an applicant’s intended appeal against the decision of the court.  According to a number of authorities, including Re MK HCMP 2609/2016, Islam Raja Rais v Director of Immigration HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226, such factor is a crucial one.  It is also trite law that the Applicant has the burden to satisfy the Court that his intended appeal has good prospects of success.  

14.  The Applicant in his affirmation and during the hearing has not provided any ground of appeal apart from saying that the Director and the Board had rejected his claim without proper enquiry and without carefully understanding his situation.  No particulars are given.  He has only given his reasons for the delay in filing the notice of appeal, which the Court, as pointed out above, has found to be unsustainable. 

15.  The grounds advanced by the Applicant in his first application for leave to apply for judicial review had been given due consideration by the Court and the conclusion is that there was neither procedural unfairness nor error of law in the decisions of the Director and the Board. 

16.  The Court, as pointed out above, is of the view that the delay of the Applicant in filing the notice of appeal for 8 months is unreasonable and, more importantly, his intended appeal has no prospects of success.  It serves no meaningful purpose to extend the time for appealing. The application for leave to appeal out of time is refused and the Applicant’s summons is dismissed.