RE SK SHARAFAT

HCAL 623/2017

[2019] HKCFI 1707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 623 OF 2017

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D E C I S I O N

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Application for leave to appeal out of time

1.  The Applicant asks for extension of time to appeal against the order of Deputy High Court Judge Woodcock (‘the Judge”) in HCAL 623/2017. The Judge on 25 June 2018 refused to grant him leave to apply for judicial review.

2.  The Applicant is a national of India. He last entered Hong Kong on 22 March 2014 and was permitted to remain until 5 April 2014.  He overstayed and surrendered to the police on 13 April 2014. He then lodged a non-refoulement claim.

3.  By his order dated 27 April 2016, the Director of Immigration (“the Director”) rejected the Applicant's claim with respect to these three applicable grounds: risk of torture[1], risk of persecution[2] and risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3].  

4.  By his further order dated 15 February 2017, the Director rejected the Applicant's claim with respect to the fourth applicable ground: risk of violation of the right to life (BOR2 risk)[4].

5.  The Applicant then lodged an appeal with the Torture Claims Appeal Board/Non-refoulement Petitions Office (“the Board”). The Adjudicator rejected his appeal on 11 August 2017. 

6.  The Applicant filed a notice of application for leave to apply for judicial review on 15 September 2017 and requested an oral hearing.  He appeared on 31 January 2018 in person before the Judge.

7.  By her order dated 25 June 2018, the Judge refused to grant leave to the Applicant for judicial review.

8.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the Applicant had 14 days to lodge an appeal against the Judge’s order refusing him leave to apply for judicial review. He failed to do so in time.

9.  One odd months after the deadline, i.e. on 17 August 2018, the Applicant took out the present summons to apply for extension of time for lodging appeal.

Reasons for being late

10.  The Applicant said he was late because he was not aware of the time limit. He also said he did not understand the Judge’s order because no one read it to him and he had difficulty in seeking assistance. He only found out recently that he had to appeal within 14 days after the date of the order.

Grounds of intended appeal

11.  The Applicant complained the Judge was wrong to find that he had not provided grounds against the Director. He said he had complained about the lack of legal representation when the Director considered the issue of BOR2 risk. The Applicant said the Judge was wrong to deal with his application for leave for judicial review in relation to the Board's decision only.

Hearing

12.  The summons hearing took place on 19 September 2018. The Applicant appeared in person. A Hindi interpreter provided service in court.

13.  The Applicant confirmed he received the Judge’s order dated 25 June 2018. He was not aware of the 14-day limit for appeal. He found that out subsequently from a ‘friend’s friend’. Four to five days later, he took out the present summons on 17 August 2018. That ‘friend’s friend’ helped him to prepare the documents for the current application.

14.  I told the Applicant he must show a reasonable prospect of success of his intended appeal. He said all the grounds of appeal were in his affirmation. He had nothing to add.

Discussion

15.  In considering whether to extend time for appealing against an order to refuse leave for judicial review, the court will have regard to: (i) the length of delay; (ii) the reasons for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the putative respondent if extension of time was granted.[5]

16.  On 25 June 2018, the Judge refused the Applicant's application for leave for judicial review. The Applicant failed to file an appeal within 14 days.

17.  The Applicant admitted he received the CALL-1 form and court order but no one read the documents to him. He was not aware of the 14-day limit for appeal. He found that out later from a ‘friend’s friend’ and took out the present summons on 17 August 2018.

18.  The Applicant told the court a friend prepared the English documents for him in his earlier application for leave for judicial review in September 2017.

19.  After receiving the Judge’s order dated 25 June 2018, the Applicant could have gone to that friend or someone else for assistance and to file an appeal in time. The Applicant caused his own delay. His ignorance of the time limit was no excuse. I do not find the Applicant has any good reason for his delay in applying for appeal.

20.  The Applicant was told he must show a reasonable prospect of success of his intended appeal. He said all the grounds of appeal were in his affirmation. He had nothing to add.

21.  In his affirmation dated 17 August 2018, the Applicant complained the Judge was wrong to find he had not provided grounds against the Director. He said he had complained about the lack of legal representation when the Director considered the issue of BOR2 risk.

22.  There was no record the Applicant had raised the legal representation issue before the Judge.

23.  The Applicant complained the Judge was wrong to deal with his application for leave for judicial review in relation to the Board's decision only.

24.  In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[6] The Judge was entirely correct to deal with the Applicant's application for leave for judicial review in relation to the Board's decision only.

25.  It is said in Nupur Mst v Director of Immigration [2018] HKCA 524 that in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant and the prospect of an appeal is assessed by reference to his intended grounds of appeal. The Court of Appeal would not examine the decision of the Board afresh as if it is a fresh application for judicial review.

26.  It is repeated in Re Islam Rafiqul that “…In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong…”.[7]

27.  In the present case, the Applicant not only failed to show any good reason for his delay, he also failed to advance any viable ground for the Court of Appeal to consider the Judge’s order should be reversed.

Conclusion

28.  The Applicant fails to show any good reason for his delay and fails to show his intended appeal has any reasonable prospect of success. I refuse to grant him leave to appeal out of time. The summons dated 17 August 2018 is dismissed.