RE ARSHAD MIAH

HCAL 2891/2018

[2020] HKCFI 2999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2891 of 2018

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DECISION

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Background

1.  On 10 August 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant extension of time to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 11 July 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 15 December 2016 rejecting the applicant’s non-refoulement claim.

2.  The Judge refused to grant extension to the applicant to apply for judicial review for reasons stated in [13-18] of his decision (Form CALL-1).  He noted that the application was late and the court had to consider the merits of his case in order to determine whether time should be extended.  Significantly the Judge found in his conclusion that the applicant’s intended application for judicial review had no reasonable chance of success.  He therefore refused to extend time and dismiss the application.

3.  By a summons filed on 25 August 2020, the applicant applied for “extension of time to appeal” against the Judge’s refusal.

4.  On 14 July 2020, the decision of H v Director of Immigration [2020] HKCFA 22 was handed down by the Court of Final Appeal.  The CFA held that the refusal by a judge of an extension of time to make an application for judicial review is part and parcel of a refusal to grant leave to apply for judicial review.  Therefore, the decision is appealable as of right by reason of Order 59, rule 21(1)(g): paragraph 42 of the judgment.  There is no further need under section 14AA of the High Court Ordinance (Cap. 4) for an applicant to seek leave to appeal before the Court of First Instance judge before he/ she may appeal directly.

5.  Given the circumstances, I am prepared to accept the applicant’s summons application as an application for extension of time to appeal against the Judge’s Decision.

6.  However, the applicant still has to bring his application to appeal within 14 days as prescribed under Order 53, rule 3(4) of the Rules of the High Court.  By the time the applicant’s summons was filed, the applicant was out of time to appeal for just one day.

7.  In his summons and supporting affirmation of 25 August 2020, the applicant did not explain the reason for his late application.  Nor did he provide any draft or proposed grounds of appeal, or particulars of errors or unfairness of the Judge.  He stated that he did not agree with the Judge and that his life will not be safe if he is refouled to his country.

8.  At the hearing, he said the reason why he was late is that because he could not afford to pay the fee of $1,000 (presumably he was referring to the filing fee for the notice of appeal to the Court of Appeal).  However, if he did it after the 14-day period, he did not need to pay any money (presumably referring to the summons for extension of time before a Court of First Instance judge).  He reiterated that he is in fear of his life and that he would be killed by loan shark, if refouled.

9.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

10.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

11.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

12.  In the present case, the applicant was late by one day only.  While the delay was insignificant, the applicant does not have a valid explanation for the delay.  Indeed the reason was only his tactic and an abuse of court process.  The delay is not excusable.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal.

13.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Assessment of evidence and evaluation of risk are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  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.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14.  In the summons and the supporting affirmation, the applicant did not provide any draft or proposed grounds of appeal, or particulars of errors or unfairness of the Judge.

15.  The Board found the applicant not a truthful witness and he had manufactured his claims.  The Judge properly reviewed the decisions of the Board with rigorous examination and anxious scrutiny, he could not find any public law grounds that warrant the court’s interference with the decisions.  The Judge demonstrated in his consideration that he had applied the relevant legal principles correctly and considered all the relevant issues reasonably and properly.

16.  The applicant has not identified any grounds of appeal or errors in the Judge’s decision.  None could be ascertained from the papers or at the hearing.

17.  Having considered the materials before me, I am of the view that the findings by the Board on the lack of credibility of the applicant and the Judge’s observations are justified.  The Judge was perfectly entitled to refuse to grant extension of time for leave to apply for judicial review.

Conclusion

18.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time, and the summons dated 25 August 2020 taken out by the applicant is dismissed.