Mehmood Ikhlas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1104/2017

[2019] HKCFI 294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1104 OF 2017

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D E C I S I O N

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Introduction

1.This is an application filed on 27 November 2018 seeking leave to appeal out of time against an Order of this court dated 12 November 2018, refusing to extend the period for making an application for leave to apply for judicial review.  However, the Order of this court dated 12 November 2018, was not an order of refusal to extend time but an order refusing leave to apply for judicial review.  The hearing proceeded on the correct basis i.e. as an application to extend time to appeal the decision of this court to refuse leave to apply for judicial review.

2.The applicant had 14 days in which to apply to appeal the Order of 12 November 2018.  He did not do so.  He now requires leave to extend time to appeal against that Order. The applicant is unrepresented and attended court for the hearing.  The court has taken some time to explain the current proceedings and the issues which have arisen.

Procedural background

3.The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  He entered Hong Kong illegally on 22 October 2013 and was arrested by the police on 15 January 2014.  He submitted a non‑refoulement (“NRF”) claim on 16 October 2015 and was interviewed by the Director of Immigration (“the Director”) on 8 December 2015.  The Director dismissed his claim under all heads, by Notices of Decision on 17 February and 28 November 2016.  Under section 37ZS of the Immigration Ordinance, Cap 115, the applicant had 14 days in which to lodge an appeal from the Decision or Further Decision of the Director.  He did not do so.  He lodged his appeal on 3 February 2017.  His appeal against the Director’s Decision was almost a year out of time and his appeal against the Further Decision (in respect of BOR 2), was over two months from that decision.  The appeal, being out of time, was considered by the adjudicator of the TCAB, Mr Ronald Cheung (“the Adjudicator”), in respect of extension of time to appeal.  He dealt with that issue on the papers.  There being no satisfactory explanation for his delay, the Adjudicator refused his application for extension of time on 10 August 2017.

4.The applicant filed a notice of application on a Form 86 dated 19 December 2017, seeking leave to apply for judicial review of the Decisions of the Director only and did not request an oral hearing.  The matter was therefore considered on the papers.  His application for leave to apply for judicial review was refused on 12 November 2018 for the reasons given therein.  He had 14 days from that date to appeal that decision, which would have expired on 26 November 2018.  By way of summons filed on 27 November 2018, he now seeks leave to appeal out of time.

5.An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)). The applicant may appeal as of right.  However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order has to observe the time limits for appeal under Order 59, rule 2B which allows 14 days.  Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59 rule 15.  In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of, and explanation for, the whole of the delay since time expired.  Although the applicant was only late by one day, the granting of an extension of time is entirely within the discretion of the court.  No appeal may be maintained without it.  The applicant is required firstly to explain the reasons for his delay.  The court will look at those reasons as well as the length of the delay, but will also consider the underlying merits of the applicant’s appeal in order to ensure that the judicial process is applied fairly and with due regard to wasting court time.  

6.Dealing firstly with the delay before this court in seeking an extension of time to appeal.  The applicant has not addressed this issue in his Affirmation in support.  He appears to be unaware of it.  Indeed, and unfortunately, the Affirmation is somewhat confusing as the applicant is seeking leave to appeal against an order refusing to extend time for leave to apply for judicial review.  This court did not refuse to extend time for leave to apply for judicial review.  This court refused leave to apply for judicial review.

7.As to the issue of delay, at para 4 of his Affirmation in support, the applicant states: “I am not aware of the time limit.  I have never been involved in any court proceedings in my entire life”.  This is not entirely correct.  Whilst the proceedings he has instituted in Hong Kong may be the first he has been involved in, he has been concerned in them since his NRF dated 16 October 2015 and he certainly realises the consequences of delay as he does not seek to appeal the refusal to grant an extension of time by the Adjudicator.  The applicant maintains that his application to appeal my decision was delayed because, despite requests for assistance, the court staff were singularly unhelpful and that he was prejudiced thereby.  He maintains he was particularly prejudiced by the lack of assistance in interpreting the Call-1 and Order and in understanding the procedure to be adopted thereafter.  Even so, and despite assistance by this court, he has not been able to identify any grounds of appeal in respect of the decision of this court to refuse leave.  He simply does not want to return to Pakistan.

8.The role of the Court of Appeal in judicial review is not to provide a further avenue of appeal.  The primary decision makers were the Director and the Adjudicator.  The Court of Appeal will not intervene unless the appellant can show that there has been an error of law or procedural unfairness or irrationality in the decision of the Director, the Adjudicator or this court in reviewing the same.  Where there is a refusal of leave by a judge of the Court of First Instance, an appeal from that refusal is not an opportunity to repeat any arguments advanced and rejected by the judge nor it is an opportunity to raise argument not placed before the judge.  In an appeal against refusal of leave, the Court of Appeal will only examine the decision of the judge in the light of the grounds advanced by the applicant.

9.Before me, the applicant has not sought to advance any argument for the consideration of the Court of Appeal.  There has been no complaint raised against the decision of this court.  The Court of Appeal would only reverse the decision of this court if the applicant can demonstrate that there were errors in law; that this court failed to take into account relevant matters; or the decision was otherwise plainly wrong.

Conclusion

10.Despite the fact that the applicant has not advanced any grounds of appeal, I have nevertheless considered his underlying application and any reasons he may have on appeal from my refusal of leave.  His underlying claim had no merit, as explained at some length in the initial refusal of leave.  There were extensive grounds of review in respect of the decisions of the Director and the Adjudicator, which were identical to grounds of review often submitted but without any causal connection to the underlying facts.  There has been no complaint before this court in respect of the decision to refuse leave.  The applicant merely wishes the Court of Appeal to consider his situation afresh as he is unhappy with the decision of this court and does not want to return to his own country.  Having considered the length of delay, even though minimal, the reason for the delay and, more importantly, the underlying merits of his application both below and on appeal, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

11.The applicant’s summons filed on 27 November 2018 be dismissed.

The applicant appeared in person.