RE MOHAMMED SAQIB

CAMP 402/2021

[2022] HKCA 290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 402 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1777/2018)

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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 to appeal against the decision of DHCJ KW Lung (“the Judge”)  dated 29 June 2020 refusing to grant leave to the applicant to apply for leave for judicial review out of time. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 23 April 2018 (“the Board’s Decision”), dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  dated 31 December 2015 and 25 January 2017 rejecting the applicant’s non-refoulement claims.

Background

2.  The applicant is a national of India.  He last entered Hong Kong on 27 April 2013 and was permitted to remain as a visitor until 11 May 2013.  He overstayed and was arrested by the police on 1 September 2013.  The applicant thereafter lodged a torture claim on 3 September 2013.

3.  The applicant’s claim was based on a fear of being harmed or killed by the brother of his girlfriend.  The details of the applicant’s claim have been summarised by the Judge at [4] to [6] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 31 December 2015, the Director decided against the applicant’s claim (“the Director’s 1^st Decision”).  The Director’s 1^st Decision covered the torture risk[2], the persecution risk[3] and the BOR 3 risk[4].

5.  By a Notice of Further Decision dated 25 January 2017, (“the Director’s 2^nd Decision”)  the Director also decided against the application’s claim based on the BOR 2 risk[5].

6.  The applicant appealed to the Board.  After a hearing on 13 March 2017, the Board dismissed the appeal on 23 April 2018.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board concluded that the evidence in support of the applicant’s claims was inadequate, and in any event the applicant’s concerns or fears may be reduced or alleviated by seeking state protection or internally relocating within India.  

The Judge’s decision

7.  The applicant filed a Form 86 on 29 August 2018, out of time, seeking to judicially review the Board’s Decision without setting out any grounds of review.  His supporting affirmation merely stated, without particulars, that the Board’s Decision was unfair and unreasonable.

8.  After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [18] of the CALL-1 Form:

“14.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  The Board had considered the merits of his case by reference to the evidence available to it.

16.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

17.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

18.  I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

9.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at his address as stated in his Form 86 on 29 June 2020, and were not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. 

11.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 29 June 2020.  He did however on 5 October 2020, more than 3 months after the date of the Judge’s decision, take out a summons in the Court of First Instance seeking an extension of time to appeal.  In his supporting affirmation filed on the same date, the applicant claimed that he had only received the court’s letter dated 29 June 2020 on 10 August 2020, as well as repeating his case for leave for judicial review.

12.  The applicant’s application to appeal out of time was dismissed by DHCJ P Li on 15 September 2021[6].

13.  By a summons filed on 23 September 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant simply stated that he was “unhappy” with the decision of the court below.

14.  In his written submissions dated 7 October 2021, the applicant stated, inter alia, that the Judge was wrong in law for “not having applied the principle of irrationality” and that he “reviewed the matter lightly”.

Discussion

15.  Having considered the papers and the applicant’s written submissions, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  The applicant claims that he did not receive the CALL-1 Form or the Judge’s sealed order in time for him to bring a timely appeal.  The fact was that these documents had been posted to his stated address on 29 June 2020, and were not returned in the post.  The applicant’s address remained the same at all material times.

17.  Despite his contention that he only received the documents in August 2020, no detail as to the circumstances of the delay was offered.  There was also an unexplained further delay of 2 months before he made the extension of time application before DHCJ P Li.

18.  In the circumstances, particularly in light of the delay in bringing his extension of time application in the court below, we reject the applicant’s explanation for his delay in lodging his intended appeal.

19.  We have nonetheless proceeded to consider the merits of the intended appeal.

20.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.  For this reason, we are also of the view that time should not have been extended for the applicant to bring the intended application for leave for judicial review.

21.  The applicant has failed, in his written submissions or otherwise, to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.  As this court has repeatedly pointed out, an appeal against a refusal of leave to bring judicial review proceedings is not to be treated as a second application for leave for judicial review.  It is essential for an intending appellant to identify some error or the part of the Judge below. 

22.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 23 September 2021 is accordingly dismissed.