Re Bepari Hiru

HCAL 681/2018

[2019] HKCFI 1571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 681 OF 2018

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Before: Deputy High Court Judge K. W. Lung in Chambers

Date of hearing: 17 April 2019

Date of Decision: 21 June 2019

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D E C I S I O N

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This application

1.This is the applicant’s application for leave to appeal against Deputy Judge J. Lam’s decision by way of Form call-1 dated 30 January 2019 (“the Court’s Decision”).

2.The Court’s Decision was made where the applicant asked for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”).

3.However, the applicant was out of time for taking out the said application for leave to apply for judicial review. In the same hearing, the Deputy Judge dealt with the issue whether extension of time should be granted to him for the application for judicial review of the Board’s Decision.[1] Having considered the merits of his case and for the reasons given in the decision, the Deputy Judge refused to grant him extension of time[2].

4.In the Court’s Decision, the Court had made an Order that if the applicant wished to appeal against the decision, he had to take out the application for appeal within 14 days from the date of the Court’s Decision. The applicant has now taken out the application for leave to appeal to the Court of Appeal.

A reasonable argument case?

5.The consideration of whether leave should be granted to the applicant to appeal against the Court’s Decision to the Court of Appeal was laid down by the Court of Final Appeal in Peter Po Fun Chan v Winnie C.W. Cheung, Chief Executive & Registrar of Hong Kong Institute of Certified Public Accountants and Mark Fong, Chairman of the Registration and Practicing Committee of the Society (2007) 10 HKCFAR 676 at §15:

“…The granting of leave to apply for judicial review is a matter for the court’s discretion to be exercised judicially. The test which should be applied is the arguability test. Under this test, arguability must mean reasonable arguability. A claim for relief which is not reasonably arguable could not be regarded as arguable. A reasonably arguable case is one which enjoys realistic prospects of success.”

6.The Applicant has filed an affirmation in support of his application. In his affirmation, he submitted that he was advised that he had good grounds for the appeal. He exhibited two exhibits in support of his grounds. Exhibit A is Form Call‑1 of Deputy Judge J. Lam. I do not see any valid ground for his appeal in this exhibit. Exhibit B is his written submission, in which he submitted that his application involved “the life and limb are in jeopardy and [the Appellant’s] fundamental human right not to be subjected to torture is involved.” This I agree. The Deputy Judge’s consideration of his application did not deviate from this important basis. See paragraph 36 of the Court’s Decision. Exhibit B refers to the legal principle of “high standard of fairness” as laid down by the Court of Final Appeal in Secretary for Security v Prabakar (2004) 7 HKCFAR 187. Again, the Deputy Judge had not overlooked this important standard of test as seen from the same paragraph of the Court’s Decision.

7.The Court had held in the Court’s Decision:

“45. The Applicant failed to show any good reason for the almost 12‑month delay in his application for leave for judicial review. The delay was undue and substantial. The prejudice that would be caused to the putative respondent was not insignificant. Discipline should be maintained in the area of public law. The current application involved no issue of general importance. It also had no merits.

46. The Adjudicator dismissed the Applicant’s appeal because it was late. He was of the view that the delay though short by itself was still a serious and significant failure to comply with the strict rules in s. 37ZS and s. 37 ZT of the Immigration Ordinance. The Applicant failed to give any reason for the delay. The Adjudicator found there was no special circumstances that would make it unjust to reject the Applicant’s late filing of appeal.”

Re Qasim Ali CACV 547/2018, [2019] HKCA 430 8 April 2019

8.When the Court made this Decision, it did not have the benefit of the decision of the Court of Appeal in Re Qasim Ali CACV 547/2018, [2019] HKCA 430 8 April 2019. In this case, the Court of Appeal held that the Adjudicator of the Board was in error in holding that eight days were significant delay and that the Board should consider the merits of the case, though on the papers, before making its decision to refuse the applicant’s appeal against the Decision of the Director of Immigration. In this appeal case, the applicant appealed to the Court of Appeal within time.

9.The applicant’s delay in this case was two days. However, the Adjudicator considered that the applicant had no good reason for his delay. He also considered that the delay was serious and significant failure to comply with the strict rules in s. 37ZS and s. 37ZT of the Ordinance. Similar to the Qasim Ali case, the Adjudicator dismissed the applicant’s appeal without considering the merits of his appeal.

10.With the benefit of the Court of Appeal’s decision, it is quite obvious that the Adjudicator’s was in error because he had not considered the merits of the applicant’s appeal before he dismissed his appeal. This Court will be bound by the Court of Appeal’s decision if the applicant took out the application for leave to apply for judicial review against the Board’s Decision within time. Leave should be granted to the applicant for his application.

11.However, the Deputy Judge considered not only the reasons upon which the Board refused the applicant’s appeal, but also the important factor that the applicant was out of time for taking out the application for leave to apply for judicial review of the Board’s Decision. Here the delay is, as according to the Deputy Judge, about 12 months.

The question for this Court’s consideration

12.The question before this Court is, given the said Judgment of the Court of Appeal, whether the Deputy Judge should have granted extension of time to the applicant for his application for judicial review despite the fact that he was late for about 12 months without any good reasons.

13.The Court had considered Order 53 Rule 4(1) of the Rules of the High Court:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)”

14.The Court held:

“40. It is clear from these provisions that no application can be made after the three-month period unless the Court considers there is a good reason for extending time. The Applicant must provide good reasons for the Court to approve an extension of time. It is a pre-requisite in late application for leave for judicial review.[3] If the court is not satisfied that there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[4]

15.The Court further held:

“47. The current application for leave for judicial review is unreasonably late. There are no justified circumstances that oblige the court to consider such late application. I refuse to grant the Applicant extension of time. His late application for leave for judicial review is therefore dismissed.”

16.The Court of Appeal in BL v. Director of Immigration [2016] 2 HKLRD 520 held that if there is no satisfactory explanation for the delay in application for leave to apply for judicial review, expartie leave should be refused without considering other factors [132-133].

17.The Court of Appeal in Re: Farooq Muhammad CACV 280/2017 [2018] HKCA 183, Poon JA, §10 held that lack of reasonable explanation for the delay will be considered as reason for refusal of leave to the applicant.

Conclusion

18.In the circumstances, I agree with the Deputy Judge that extension of time should not be granted to him for the application for leave to apply for the intended judicial review. The applicant has no reasonable prospect of success in his intended appeal.

19.Accordingly, I dismiss his application for leave to appeal against the Court’s Decision to the Court of Appeal.

The Applicant appeared in person