RE SHEIKH IDDRIS

CAMP 52/2017

[2018] HKCA 2

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 52 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 124 of 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock on 8 September 2017 refusing leave to the applicant to apply for judicial review. The applicant came to Hong Kong on 8 November 2013 illegally and was arrested by the police on 9 November 2013. On 11 November 2013 he lodged a non-refoulement claim. The Director decided against his claim on 5 February 2016, supplemented by a further decision of 10 February 2017. He appealed to the Torture Claims Appeal Board and the Board, after hearing him, dismissed the appeal on 28 February 2017. The intended judicial review was in respect of the decision of that decision of the Board. The Board rejected the non-refoulement claims of the applicant in respect of torture risk, BOR 3 risk, persecution risk and BOR 2 risk.

2.  The judge refused leave on 8 September 2017 after hearing the applicant on 21 August 2017.  She gave the following reasons in refusing leave at [18] to [22] of the Form CALL-1:

“ 18. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully. He also applied the correct standard of proof. The applicant’s complaints against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

19. I found no substance in the grounds of this application. In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated. The adjudicator rejected the applicant’s evidence in its entirety and gave full and cogent reasons why. Having rejected the applicant’s evidence and his claim on credibility, there was no need for the adjudicator to sufficiently research and enquire into the COI conditions, the existence of State protection or the possibility of internal relocation but he still proceeded to do just that. The information was not hearsay or irrelevant as claimed. There is no substance in this ground.

20. The applicant relies on a procedural impropriety/unfairness ground in that he was confused before and during the hearing and did not have sufficient time to prepare for his appeal. However, there is no record in the decision of any complaint from the applicant that he required more time or assistance. He was provided with an interpreter to assist him during the hearing and apparently adopted all the information contained in the hearing bundle. This indicates he was aware of its contents and not confused. There is no substance in this ground.

21. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

3.  According to court record, the CALL-1 form and the sealed order of the judge were sent by post to the applicant on 8 September 2017.

4.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  On 22 November 2017, he applied by summons for extension of time to appeal.  His application was supported by an affirmation.  In the affirmation, he said he had no idea about English and he could not read and write English.  He also said he had nobody to assist him with an appeal.  He heard from people in a non-government organization telling him he could appeal.  Then he applied to court.

5.  On 11 December 2017, he lodged a set of submissions (written in English, presumably by someone on his behalf).  In those submissions, he did not give further explanation for the delay.

6.  By reason of Order 59 Rule 2A and Rule 14A(1), this Court can determine an application for extension of time to appeal without an oral hearing.  The applicant had been notified of such possibility by the Registrar of Civil Appeals in the directions of 27 November 2017 before he lodged his submissions pursuant to such directions.  Notwithstanding the request for an oral hearing by the applicant, we consider that the present application can be determined on the papers.

7.  We do not find the long delay between 22 September and 22 November 2017 to be excusable.  The applicant obviously had access to someone in a non-government agency to assist him in the litigation.  He did not explain why he could not ask that person or someone else in that agency to interpret to him the decision of the judge set out in the CALL-1 form.  

8.  In the absence of a cogent explanation for the delay, extension of time should not be granted under the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Fery Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217 of 2015, 22 January 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 November 2016. 

9.  He did not include any draft notice of appeal in his documents filed with the court.  In his submissions, he said the judge’s decision was not fair and just and did not take into account of him as an unrepresented litigant with limited resources.  He also said the Board was wrong to reject his claim by not accepting his own evidence as being sufficient to raise substantial grounds for believing that there is foreseeable real and personal risk to him. He said the Board was wrong to require his family member to return to his family home to obtain medical documentation to support his claim.  He also disagreed that internal relocation was an option because the use of his identification for relocation purposes would alert his political opponents.

10.  We note that these were not the same grounds as those put forward in his Form 86.  An appeal is not the occasion for an applicant to shift his grounds after the original grounds have failed to succeed at the court below. This principle is equally apposite in an appeal against the refusal of leave. Otherwise, an applicant could flagrantly disregard the time limit in Order 53 Rule 4(1).

11.  In any event, these new grounds have no merit.  Though the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision maker is still the Board.  The court should not usurp the role of the Board.  Having read the full decision of the Board, we are of the view that it was perfectly open to the Board to come to its conclusion on the lack of credibility of his claim.  The Board did not require his family members to obtain the relevant medical evidence.  It only commented on the lack of such material when those representing him legally could have written to the hospital to obtain the medical records. 

12.  When one reads the judge’s observations in the CALL-1 Form together with the detailed Reasons given by the Board in its Decision of 28 February 2017 as well as the Notice of Decision of the Director of 5 February 2016 and Further Decision of 10 February 2017, the new grounds are not reasonably arguable.  We do not see any errors of law or procedures in the proceedings before the Board.  We agree with the judge that leave to apply for judicial review should not be granted.

13.  For these reasons we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 22 November 2017 is dismissed accordingly.

14.  We are of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.