RE MOHAMED CASSIM JAWFAR

CAMP 16/2020

[2020] HKCA 633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 16 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 142 OF 2018)

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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):

Procedural background

1.  In a decision made on 25 August 2015, the Director of Immigration rejected the applicant’s claims for non-refoulement on grounds of torture risk, BOR3 Risk (risk of torture, or cruel, inhuman or degrading treatment or punishment) and persecution risk.  The applicant appealed that decision to the Torture Claims Appeal Board (“TCAB”). After an oral hearing, the TCAB dismissed his appeal for the reasons set out in its Decision dated 27 February 2017 (“the TCAB 1^st Decision”) which are summarized in para.21 below.  The applicant did not challenge the TCAB 1^st Decision.

2.  Subsequently the Director of Immigration invited the applicant to submit additional facts, if any, which he considered relevant to a claim for non-refoulement on the ground of BOR2 risk (risk of loss of right to life).  The applicant did not submit any additional facts.  In a decision made on 10 May 2017, the Director rejected the claim on that ground as well.  The applicant appealed that decision to the TCAB.  Having considered the contents of his Notice of Appeal/Petition, the TCAB (comprising the same adjudicator who had given the 1^st Decision) did not consider it necessary to conduct another oral hearing.  The TCAB dismissed that appeal for the reasons set out in its Decision dated 31 August 2017 (“the TCAB 2^nd Decision”).

Late application for leave for judicial review

3.  On 31 January 2018 (5 months after the TCAB 2^nd Decision), the applicant filed a Form 86 for leave to apply for judicial review against the TCAB 2^nd Decision. 

4.  Under Order 53 r.4 of the Rules of the High Court (“RHC”), an application for leave to judicially review a decision should be made, at the latest, within 3 months of that decision. The application in this case was therefore out of time by 2 months.  Nevertheless, the court has a discretion to extend time if there is good reason for doing so.     

The Judge’s October 2019 Decision

5.  The application came before the Court of First Instance (“CFI”).  Deputy High Court Judge Bruno Chan (“the Judge”) considered it on paper.  On 16 October 2019, the Judge in the exercise of his discretion refused to grant an extension of time, for reasons set out in a document known as Form CALL-1[1] (“the Judge’s October 2019 Decision”).  In that decision, the Judge set out the applicant’s case in detail (paras.1 - 7), noted the reasons for the TCAB’s 1^st Decision (para.8), recorded the events after that Decision including the TCAB 2^nd Decision (paras.9 - 11) and analysed the application before him (paras.12 - 15).  The Judge concluded that in the circumstances, the intended application simply had no merits (para.16), and taking into account other factors as well (para.17), he found there was no prospect of success in the intended application for judicial review, and in the absence of good reason for the delay, refused to extend time and dismissed the application (para.18).    

6.  At the same time however, the Judge gave a direction (“the Judge’s Direction”) that “if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal” (emphasis added).  This direction followed the judgment of the Court of Appeal in MI & IYW v Permanent Secretary for Security [2018] 4 HKC 440.  We will discuss this direction later in this Judgment.

Application for leave to appeal the Judge’s October 2019 Decision 

7.  In compliance with the Judge’s Direction, on 25 October 2019, the applicant filed a summons in the CFI for leave to appeal the Judge’s October 2019 Decision.  The applicant made an affirmation in support repeating the allegation which he had put before the Judge that he was late making an application for leave to commence judicial review proceedings because he did not know how to go about it.  He also repeated the case he had put before the TCAB which led to the 1^st Decision and before the Judge that his life would be in danger if he were to return home to Sri Lanka. 

The Judge’s January 2020 Decision   

8.  After a hearing on 11 December 2019, the Judge dismissed the application for leave to appeal for reasons set out in a decision given on 14 January 2020[2] (“the Judge’s January 2020 Decision”).     

Summons before the Court of Appeal

9.  The applicant then filed a summons on 24 January 2020 in the Court of Appeal for leave to appeal the Judge’s October 2019 Decision.  This is the summons before us. 

10.  Pausing here, it is necessary to address the procedural background set out above.  In the recent case of H v Director of Immigration and AH v Director of Immigration FACV1 and 2 of 2020 (heard together), the Court of Final Appeal held in a judgment given on 14 July 2020 that an application for extension of time in which to make an application for leave to commence judicial review was not a discrete application, separate from the application for such leave [para. 39].

11.  In other words, the Judge’s October 2019 Decision amounted to refusal of leave to commence judicial review.  As such, (a) an appeal lay from the Judge’s October 2019 Decision as of right, and the applicant should have filed a notice of appeal within 14 days of such order: Order 53 r.3 RHC; and (b) the applicant should not have applied for leave to appeal, as Order 59 r.21(1)(g) RHC excluded his appeal from the operation of s.14AA High Court Ordinance (which stipulates that leave is needed to appeal from interlocutory orders). In other words, the correct procedure was that the applicant should have lodged his appeal from the Judge’s October 2019 Decision by way of Notice of Appeal on or before 30 October 2019, instead of following the Judge’s Direction and applying for leave to appeal, which we note he did on 25 October 2019 (i.e. when he would have been in time to file a notice of appeal).

Treating summons for leave as summons for extension of time to appeal        

12.  In light of the matters set out above, and as the applicant’s proposed grounds of appeal and written submissions are before this court, we consider it would be appropriate to treat the summons for leave to appeal as a summons to extend time to file a notice of appeal, which summons may be determined on the basis of written submissions under Order 59 r.14A RHC.    

Discussion  

13.  In considering whether to extend time to appeal, it is well-established that the court would have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean that time should be extended). 

14.  In the present case, (1) the appeal from the Judge’s October 2019 Decision should have been filed by 30 October 2019, and therefore the summons to this court filed on 24 January 2020 is out of time by nearly three months.  However, (2) there are satisfactory reasons for the delay because the applicant (a litigant in person) was merely following the Judge’s Direction, and as we have noted, when he filed the summons for leave to appeal, he was within time to file a notice of appeal. 

15.  We then come to (3) the prospect of success of the intended appeal from the refusal of leave to commence judicial review proceedings out of time.  The CFA has set out in para 37 of its judgment the relevant principles to be applied in cases like the present and we shall not repeat them here.  Briefly, the following are relevant to the present case: (a) an application made outside the three-month period will entail undue delay; (b) as such, an extension of time is required, and to justify an extension of time, the applicant must show good reason for extending the period; among the various factors likely to be significant are the merits of the substantive application; (c) indeed, even if there exists good reason for undue delay, the grant of leave to commence judicial review will also depend on the arguability test (among other factors); the arguability test requires the applicant to demonstrate to the court that his case is one that enjoys realistic prospects of success.         

16.  In the present case, the applicant said he took 5 months to file his Form 86 because after he received the TCAB Decision, he sought help from people who required him to pay money for advice, and as he had no money, he eventually went to the Legal Aid Department which referred him to the High Court whereupon he realized he was out of time by 2 months already.

17.  Pausing there, we do not regard that as a good reason for the undue delay.  A period of 5 months elapsed between the TCAB Decision and his application to the CFI.  During that period, the applicant would have had plenty of time to visit the Legal Aid Department or the Resource Centre for Unrepresented Litigants, which one would have expected him to approach in the first place if he wanted to challenge the TCAB’s Decision.    

18.  As for the merits of the substantive application, he has set out 3 proposed grounds of appeal:

(1)  The TCAB failed to consider all materials and failed to give adequate consideration to his claim.

(2)  The TCAB failed to give reasons in the TCAB 2^nd Decision for rejecting his claim under the BOR 2 risk.

(3)  There has been procedural impropriety as the TCAB did not give him a hearing in relation to his appeal regarding the BOR2 risk.

19.  It would be noted immediately that these are complaints against the TCAB, not the Judge.  Furthermore, he had not raised these complaints against the TCAB before the Judge as grounds for judicial review.  As the Judge noted in the October 2019 Decision (para.12), “on 31 January 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s Second Decision, but no ground for seeking relief was given in his Form 86 or in his supporting affirmation of the same date in which he merely repeated his claim that he still had problems in his home country and that his life would be in danger if he was to return home”.  (Emphasis added). 

20.  The Judge’s observation emphasized above was clearly correct upon a perusal of the Form 86.  An application for judicial review is not a rehearing of the TCAB proceeding, and it is for the applicant to raise grounds warranting relief on judicial review.    

21.  In any event, the applicant’s proposed grounds are completely unmeritorious.  In the TCAB 1^st Decision, the TCAB had found that the applicant’s claim was vague, devoid of detail, unreliable and unworthy of being accorded evidential weight.  The applicant claimed that he had heard that his father (who died in 1990) and members of his first family had been killed for their political activities, and so the applicant said he feared unspecified Muslim Jihadist groups and/or the Police and/or the Sri Lankan Army.  However even on his own case, he himself had not participated in any political activities, and more importantly, he admitted that he had not received any threat from any of the above groups when he moved to Varipitacheni and later a town near Colombo during the 10 years between 1994 and 2004.  He claimed he was so fearful he departed for Hong Kong in 2004, but he only alleged that he had seen some unspecified Muslim Jihadist group members eating (and nothing more) at a restaurant where he was working.  There was no allegation that they threatened him.  The TCAB concluded that the applicant had failed to make out a case for non-refoulement protection under the torture, BOR3 and persecution grounds.  As noted above, the applicant did not challenge the TCAB 1^st Decision.  Subsequently, when invited, he did not submit any additional facts for consideration under the BOR2 ground.  As the TCAB had rejected his factual allegations in its 1^st Decision, and as the applicant had not submitted any additional facts, it was only logical for the TCAB to reject his case under the BOR2 ground as well.        

Order

22.  For the above reasons, the intended appeal has no merit, and the Judge was justified in refusing leave for judicial review out of time.  The application for extension of time to appeal is accordingly dismissed. 

23.  Since the application is totally without merit, we further make an order under Order 59 r. 2A(8) RHC that the applicant may not request our determination to be reconsidered at an oral hearing.