RE IRFAN MASHOOQ

CAMP 78/2019

[2019] HKCA 1181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 78 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 710 OF 2017)

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J U D G M E N T

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

1.  On 29 June 2018, Campbell-Moffat J. (“the Judge”) refused the applicant’s application for leave to start judicial review in respect of his claim for non-refoulement (“the Judge’s June Decision”), which application had been brought in time. Under Order 53 rule 3(4)Rules of the High Court (“RHC”), if the applicant wished to appeal the Judge’s June Decision to the Court of Appeal, he had to file a notice of appeal within 14 days. Leave would not be required.

2.  However, it was not until 21 August 2018 that the applicant filed a summons applying for an extension of time to appeal.  This application was dismissed by the Judge on 9 October 2018 (“the Judge’s October Decision”)[1]. 

3.  The Judge’s October Decision was an interlocutory order, and if the applicant wished to appeal it as such, he had two routes. 

(A)  He would have to ask the judge at first instance for leave within 14 days of the interlocutory order: Order 59 rule 2B(1)(a) RHC.  If the judge refused leave, he could renew his application for leave before the Court of Appeal within 14 days of the judge’s refusal: Order 59 rule 2B(3) RHC. 

(B)   Alternatively, with the Court of Appeal’s permission, the application for leave may be made direct to this court: Order 59 rule 2B(4) RHC. 

4.  In the present case, the applicant did not take either route to appeal against the interlocutory October Decision.  Instead, on 7 May 2019 the applicant filed a summons in this court, asking to “renew his application for extension of time to appeal”. 

5.  The first question is whether the Court of Appeal should in these circumstances:

(1)  entertain this application as a direct application to this court for an extension of time under Order 3 rule 5 RHC to appeal the Judge’s June Decision,

or alternatively,

(2)   insist on the applicant taking the approach set out in para. 3 above because the Judge’s October Decision was interlocutory in nature.

6.  It was held in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at paras. 3-8 that where there were the two possible approaches as set out in para. 5 above, the more straightforward approach set out at (1) should be adopted.  This would be more in line with the underlying objectives in Order 1A rule 1 RHC.

7.  Accordingly, we have decided to deal with the application as an application for extension of time to appeal the Judge’s June Decision.  We have also decided that it is appropriate to deal with this application on the papers under Order 59 rule 14A RHC.

8.  It is well-established that in deciding whether to exercise the discretion to extend time to appeal, the court considers (1) the length of the delay; (2) the reasons given for the delay; (3) the merits of the intended appeal; and (4) any prejudice to the other party.

9.  First, although we note the applicant first asked the court to extend time by an application made in August 2018, having failed to obtain an extension in October 2018, he did not apply to this court until May 2019.  This further delay of some 6 months is extremely substantial.

10.  Secondly, the reason given in the applicant’s affirmation in support simply said: “I would like to reject and review the decision made by the court as I have not received any document from the court until my CIC officer give me a copy of this order to me and told me my case is finished”. The allegation that he had not received the court order is uncorroborated. The court order was sent to the address he had provided in the documents he had filed with the court.  He was already out of time for his intended appeal from the Judge’s June Decision, and one would have expected a person who is serious in asserting his rights by litigation to pursue them with all due speed.  The following may further be noted in the Judge’s October Decision ([2018] HKCFI 2313):

“7. The applicant appeared in person. He submitted that he was late in filing his appeal because he was living with a friend at the time and not at the address he had provided to the Immigration Department. It was only when he went to sign on that he provided a new address and thereafter the relevant documents were sent to him. He had no other excuse.

8. The applicant has now been in Hong Kong since 2009. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications. He fully understood that they required an up to date address in order to correspond with him. The explanation he has offered to this court, whilst frank, was not the same as he suggested in the letter appended to the summons, which was that he did not understand the procedure. The reason this application is late is to be put entirely at his own door. He was notified promptly of the decision of this court and, had he been living at his registered address, he would have been made aware of what was required of him should he wish to appeal that decision. It was incumbent upon him to do so promptly. He put himself in a position where that could not happen. … ” (Emphasis added).

11.  Thirdly, the applicant has not shown any merits in his intended appeal from the Judge’s June Decision.  In that Decision, the Judge had closely examined the decision of the Torture Claims Appeal Board (“the TCAB”) dated 14 July 2017 rejecting his non-refoulement claim.

12.  This court has also read the TCAB’s decision which shows it had thoroughly examined the applicant’s case. 

13.  The TCAB found that the applicant did not adduce any credible or reliable evidence to show that he had been persecuted by the Sunnis particularly Abid Raza (“AR”).  In particular, the Board noted that, as acknowledged by the applicant, AR was under government surveillance at the time of the alleged attack on the applicant in June 2005 (para. 37).  Also, there was a news report in June 2016 that AR has been in prison awaiting the restoration of his death penalty, which the applicant simply denied without any objective evidence in support (para. 41). Further the applicant himself accepted that he could relocate internally (para. 86).  The TCAB concluded that the applicant had failed to make out a case for non-refoulement protection under any of the applicable grounds.   

14.  For the reasons set out in [10] – [12], the Judge dismissed his application:

“Grounds of review

10.  There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.  Despite there being no grounds of review, I have considered the papers, grounds and submissions carefully. The Applicant complains about the decision of the TCAB but I have nevertheless reviewed both Decisions to ensure complete fairness to an unrepresented Applicant. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

15.  In assessing the prospect of success of the intended appeal, we would have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. 

16.  We do not see any prospects of success in his proposed appeal from the Judge’s June Decision.  The TCAB is the fact-finding tribunal and it had found that the applicant had failed to establish his case because he failed to adduce any credible evidence to support any of the applicable grounds. 

17.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the Judge’s June Decision is present in this case and it would be futile to extend the time for an intended appeal devoid of merits.  The Judge’s June Decision was clearly right (as indeed was her October Decision).  Accordingly, we dismiss the applicant’s summons.