RE AHMAD ERSHAD alias MOHAMMAD IRSHAD

CAMP 381/2021

[2022] HKCA 251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 381 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 646/2020)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is an application for extension of time to appeal against the decision of DHCJ P Li (“the Judge”)  dated 13 January 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of DHCJ KW Lung in HCAL 2393/2018, dismissing the applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 19 October 2018 (“the Board’s Decision”)  which dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 26 June 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He last arrived in Hong Kong on 20 November 2016 and was permitted to remain as a visitor until 4 December 2016.  He overstayed and was arrested by the police on 15 December 2016.  Thereafter, he lodged a non-refoulement claim on 15 February 2017.   

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditor in India, who was said to wield great political power.

4.  By a Notice of Decision dated 26 June 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The applicant’s appeal to the Board was dismissed on 19 October 2018 (i.e. the Board’s Decision).

5.  The applicant thereafter filed a Form 86 in HCAL 2393/2018 on 23 October 2018 seeking to judicially review the Board’s and the Director’s Decisions.  This application was heard by DHCJ KW Lung, who dismissed the applicant’s application for leave by his decision dated 20 January 2020[1], for the following reasons (at [15] to [22]):

“15. The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer. His lawyer had explained the Director’s Decision to him. He also confirmed that he did not want a hearing before the Board. His friend had explained the Board’s Decision to him.

16. It is obvious that as the Board rejected all of his evidence on the salient facts in support of his claim, in particular, that he came to Hong Kong for protection. Therefore, he has no factual basis for his claim.

17. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

‘13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

18. The Board is entitled to take into consideration that the applicant failed to take advantage of a reasonable opportunity to claim non-refoulement protection under section 37ZD (1)(b)  of the Ordinance.

19. Those grounds in relation to the Director are irrelevant as the application should only apply to the Board’s Decision.

20. Ground (7)  is also irrelevant as the applicant cannot complain because he did not want a hearing himself.

21. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

22. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

The Judge’s decision

6.  Subsequent to DHCJ KW Lung’s decision, the applicant filed another Form 86 in the present proceedings, HCAL 646/2020 on 15 April 2020 seeking to judicially review DHCJ KW Lung’s decision in HCAL 2393/2018 but did not set out any grounds of review.  In his affirmation in support he merely repeated the dangers he may face upon his return to India.

7.  After summarising the facts and background of the case and hearing from the applicant at the hearing, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [8] to [11] of his decision[2]:

“8.  It is obvious that the applicant had adopted the wrong procedure. To challenge the decision of Deputy Judge Lung, he should have appealed against the decision instead of filing another leave application for judicial review.

9.  The applicant should have lodged an appeal within 14 days after the decision of Deputy Judge Lung. For that procedure, the applicant is substantially out of time as of to date.

10.  In the circumstances, the applicant should issue a summons to apply for extension of time to file a notice of appeal against the decision of Deputy Judge Lung in HCAL 2393/2018.

11.  The leave application in HCAL 646/2020 is therefore dismissed.”

8.  The applicant was expressly reminded by the Judge at the hearing of his application for leave for judicial review on 10 December 2020 that he should issue a summons to apply for extension of time to appeal against the decision of DHCJ Lung in HCAL 2393/2018, as that was the decision which dealt with his original application for leave to judicially review the decisions of the Director and the Board.

9.  Notwithstanding the Judge’s reminder, the applicant filed a summons on 2 March 2021 applying for extension of time to appeal against the decision of the Judge in HCAL 646/2020, for which he was out of time by around 4 weeks.  In refusing his application for extension of time, the Judge gave the following reasons in his decision dated 11 August 2021[3] at [6] to [12]:

“6.  The applicant filed a summons on 2/3/2021 for extension of time to appeal against the decision of this court in HCAL 646/2020.  He was out of time for about 4 weeks.

7.  In his affirmation in support of the application for extension of time, the applicant repeated the monetary dispute with his friend (Aslam)  in India.  His goods were seized by the Customs in India in 2016.  He indicated that his life was in danger as he could not repay his friend.

8.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted.

9.  The applicant was out of time for about 4 weeks.  It was substantial.  There was no explanation about the delay.

10.  The important issue at this stage is the merits of the intended judicial review. I proceed to consider the merits of the intended judicial review.

11.  As mentioned above, the applicant adopted the wrong procedure in relation to the decision of Deputy Judge Lung dated 20/1/2020 (HCAL 2393/2018). He should apply for extension of time to appeal that decision (HCAL 2393/2018)  as it is substantially out of time.  This had already been made clear to the applicant by this court during the hearing on 10/12/2020 and in the subsequent Form CALL-1 dated 13/1/2021. 

12.  In the circumstances, there is no merit in the intended judicial review. I dismiss his application for extension of time to appeal in relation to HCAL 646/2020.”

The present application for extension of time to appeal

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  According to Order 59 rule 3(1), an appeal to this court must be brought by motion in the form of a Notice of Appeal.

11.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 13 January 2021 (or, for that matter, the decision refusing leave to appeal dated 11 August 2021).

12.  The applicant instead, filed a summons with this court on 10 September 2021, where he stated:

“[Referring to the order of DHCJ P. Li’s dated 13 January 2020 (sic)]

It is ordered that the Application for Judicial Review be refused. The High Court Judge Decision is not connect SoI Appeal for the true judgment. The High Court Judge have no personal opinion. He just copy from the Adjudication of TCAB. He failed to show any caos (sic) for connect my leave. Although I respect the Honourable Judge.”

13.  In his supporting affirmation, he exhibited a copy of the Judge’s decision dated 11 August 2021 (but not the decision dated 13 January 2021), as well as stating, for the first time in these proceedings, that he was concerned that the Indian medical system is less equipped than that in Hong Kong in tackling the spread of COVID-19.

14.  The applicant, in breach of the directions of the Registrar of Civil Appeals, failed to lodge any written submissions on or before 24 September 2021.  He is thus deemed to have abandoned his right to rely on written submissions.  We have nonetheless proceeded to consider his application.

Discussion

15.  Having considered the papers in this case, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  It is uncertain what relief the applicant intended to obtain by way of his summons filed on 10 September 2021, or pursuant to what provision(s)  that application was made.  He did not state whether he was seeking extension of time to appeal against the Judge’s decision(s), and even if that had been his intention, given his mention of the 13 January 2021 decision in the summons and attachment of a copy of the 11 August 2021 decision to his supporting affirmation, he did not make clear as to which of the Judge’s decisions (or both)  it is that he now seeks to appeal out of time.

17.  For the purpose of this application, by reason of the express reference to the Judge’s decision dated 13 January 2021 in the summons filed on 10 September 2021, we propose to treat the summons as an application for extension of time to appeal against that decision.

18.  First, we note that the applicant has failed to provide in his summons filed on 10 September 2021 or the supporting affirmation any explanation for the delay in bringing the intended appeal.  The delay is more than 7 months and is thus, on any view, substantial.

19.  Further, as pointed out by the Judge in his decision dated 13 January 2021, the applicant has clearly adopted the wrong procedure in challenging the refusal by DHCJ Lung to grant him leave to apply for judicial review against the Board’s and the Director’s Decisions.

20.  The correct course of action was for the applicant to appeal against the decision of DHCJ Lung in HCAL 2393/2018, and given that he was well out of time for doing so, he should have applied for an extension of time to appeal against the decision of DHCJ Lung in HCAL 2393/2018, further, judicial review does not, in any event, lie against a judicial decision.

21.  We are thus of the view that the application for leave for judicial review of the decision of DHCJ Lung was hopeless and rightly dismissed by the Judge, and the presently proposed appeal is similarly hopeless.

22.  In the circumstances, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 10 September 2021 is accordingly dismissed.