MAMDOUH RABIE MOHAMED SALEH v. TORTURE CLAIMS APPEAL BOARD

CAMP 9/2024, [2024] HKCA 372

On An Intended Appeal From [2023] HKCFI 2017 &

[2023] HKCFI 3231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 9 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 257 OF 2023)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 11 January 2024, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 28 December 2023 refusing to grant the Applicant an extension of time to appeal against the Judge’s earlier order dated 4 August 2023 (“the Order”) refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 10 August 2017, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 6 June 2017 rejecting the Applicant’s application to re-open his non-refoulement claim.

3.  Having considered the documents before us, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 1A, Rule 4 and Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Egypt. In 2014, he raised a non-refoulement claim on the basis that, if he returned to Egypt, his life would be in danger from his Muslim community for having a relationship with a Christian woman. He was subsequently released on recognizance pending the process of his claim. However, for the next 3 years, he failed to report on his recognizance, and failed to provide a completed Non-refoulement Claim Form (“NCF”) on or before 28 March 2017 as required by the Director. Accordingly, the Director treated his claim as being withdrawn on 29 March 2017. On 21 April 2017, the Applicant wrote to the Immigration Department and requested that his non-refoulement claim be re-opened

5.  By a Notice of Decision dated 6 June 2017, the Director rejected the Applicant’s application to re-open his non-refoulement claim (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 10 August 2017, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §8 of the CALL-1 Form:

“In its decision the Board found that the last date for the Applicant to file his Notice of Appeal to be 22 June 2017, that he was therefore some 12 days late when it was filed on 4 July 2017, that such a delay was not insignificant, that his explanation of suffering from some mental health problem was vague and unsupported by any documentary evidence despite being invited by the Board to do so or to provide further details or particulars of his alleged mental health issue, that having already raised such issue in the past before the Director on many occasions that the Applicant should have been expected to provide some supporting evidence relating to the issue but failed to do so that his reason for the delay was found to be unpersuasive, that his claimed risk of harm from his Muslim community for having a relationship with a Christian woman if real would be a localized one that can be minimized or negated by him relocating to other part of Egypt away from his home district that there is no merit in his claim or appeal, and concluded that it was not satisfied that by reason of special circumstances that it would be unjust not to allow the late filing of the Applicant’s Notice of Appeal.”

7.  On 20 February 2023, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In his supporting affirmation of the same date, he repeated his claimed fear of risk of harm from his fellow Muslims in his home district over his relationship with a Christian woman which he considered would not be acceptable to the Muslim community in his home country. He also referred to his mental health issues, and expressed his wish to stay and live in Hong Kong.

THE JUDGE’S DECISION

8.  On 4 August 2023, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[17] As the last day of the three-month period for him to file his Form 86 fell on 10 November 2017, the Applicant was therefore more than 5 years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

[18] In the Applicant’s case, a delay of more than 5 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

[19] As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision in refusing to allow the late filing of his Notice of Appeal being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

…

[21] In the Applicant’s case, the Board refused to allow the late filing of his Notice of Appeal for the detailed analysis and reasoning as set out in its findings and assessment in paragraphs 12 – 26 of its decision including a proper consideration of the merits of his appeal as part of the relevant matters of fact within the knowledge of the Board under Section 37ZT(2)(b) of the Immigration Ordinance as the law [then] was, and as held to be necessary and relevant by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430, and in the absence of any error of law or irrationality or procedural unfairness in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge such findings of the Board.

[22] As evidenced in its decision ([15] – [22]), the Board was clearly conscious that the Applicant’s alleged mental issue if true could well justify his delay or constitute special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal, or for that matter to explain for his failure to return his completed NCF at all, but in the absence of any necessary details or particulars of such alleged mental condition from the Applicant, or at the very least the name of the doctor or hospital that he claims to have consulted so that the Board could consider making its own enquiry, I am unable to see any fault or omission on the part of the Board in its determination of the Applicant’s application for late filing of his Notice of Appeal.

[23] The crux of the matter is that the Applicant failed to submit his NCF as so required by Section 37Y of the Ordinance as noted above so as to substantiate his non-refoulement claim as part of his duties as a claimant required by Section 37ZA(1), and of which he had been repeatedly reminded by the Director as early as in 2017, and yet some 6 years since and up to his present application now before me, the Applicant has still failed to do so, and as such he has wholly failed his first and foremost duty as a non-refoulement claimant, and for which I am unable to find any justification for the Board to exercise any discretion in his favour or at all.

[24] Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness respectively in the Director’s consideration and assessment of the Applicant’s claim or in the Board’s decision to refuse the late filing of his Notice of Appeal”

9.  On 6 October 2023, the Applicant applied by summons for an extension of time to appeal against the Order. By then, he was more than 3 weeks late to lodge his appeal (disregarding the month of August 2023 being the Court’s summer vacation). On 28 December 2023, the Judge refused the Applicant’s application, holding, inter alia, that the Applicant had not provided any good or valid reason for his delay, and there was no prospect of success in his intended appeal.

THIS APPLICATION

10.  By a summons taken out on 11 January 2023 in the Court of Appeal, the Applicant applied for leave to appeal against the Judge’s decision of 28 December 2023. In his affirmation of the same date, the Applicant alleged that the decision made by the authorities was unfair, and he considered that his case was not determined fairly. No further particulars of his allegations were given.

11.  In his written submissions dated 25 January 2024, the Applicant complained for the first time about the lack of legal and language assistance. He also made some general allegations of unfairness but failed to provide further particulars in support of the allegations.

DISCUSSION

12.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for an extension of time to appeal against the Order.

13.  In deciding whether to extend time to appeal against the Order, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.  In the present case, the length of the Applicant’s delay is substantial, and he has given no good or valid explanation for his delay.

16.  The Applicant has failed to identify any error in the Judge’s decision of 4 August 2023. His complaint about the lack of legal and language assistance is a new ground which was not raised in the proceedings below. Although the Court of Appeal has power to permit a new ground of review to be relied upon on appeal in appropriate circumstances, the Applicant has given no explanation for his failure to raise this complaint in the proceedings below. Further, the Applicant has failed to identify what possible meritorious ground(s) of appeal or review he could have advanced before the Board or the Judge but could not or did not do so because he did not have the benefit of legal and/or language assistance. In this regard, we note that the Applicant’s affirmation filed on 20 February 2023 in the proceedings below, his summons and affirmation filed on 11 January 2024 in the Court of Appeal, and his written submissions dated 25 January 2024 are all written in English. This indicates that the Applicant is either conversant with English, or has access to language assistance.

17.  The Applicant has failed to raise any viable ground of appeal against the Order. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant an extension of time to appeal against the Order.

DISPOSITION

18.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 11 January 2024 is dismissed.