Re Monirul Islam

CAMP 320/2019

[2020] HKCA 635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 320 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 798 OF 2017)

_____________________

_____________________

Before: Hon Yuen and Au JJA in Court

Date of Judgment:  5 August 2020

___________________

J U D G M E N T

___________________

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

Background

1.On 11 July 2017, the Torture Claims Appeal Board (“TCAB”) rejected the applicant’s non-refoulement claim (“the TCAB decision”).  Under Order 53 r.4 of the Rules of the High Court (“RHC”), an application for leave to judicially review the TCAB decision should be made, at the latest, within 3 months of that decision.

Late application for leave for judicial review

2.However, the applicant only filed his application for leave to judicially review the TCAB decision on 23 October 2017.  It was therefore out of time by 12 days.  Nevertheless, under Order 53 r.4 RHC, the court has a discretion to extend time if there is good reason for extending the period.    

The Judge’s November 2018 Decision

3.The matter came before Campbell-Moffat J (“the Judge”) who considered it on paper.  On 19 November 2018, the Judge in the exercise of her discretion refused to grant an extension of time and dismissed the application for leave to commence judicial review, for reasons set out in a document known as the CALL-1 form[1] (“the Judge’s November 2018 Decision”).  In para.12, the Judge said: “This application is dismissed as being out of time.  There is no requirement to consider further the application for leave, however that has been done in an attempt to ensure consolidation of these matters should it be considered that leave to extend time should have been ordered” (emphasis added).

4.Pausing here, it has recently been held by the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22 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].  Accordingly, the Judge was in error when she said there was no requirement to consider further the application for leave.  However it is important to note that nevertheless, she did in fact proceed to consider it, as is clear from the CALL-1 form.

5.As the Judge’s November 2018 Decision amounted to refusal of leave to commence judicial review, an appeal lay from it as of right and the applicant should have filed a notice of appeal within 14 days of such order: Order 53 r.3 RHC (i.e. by 3 December 2018).

Applicant’s summons 3 April 2019

6.On 3 April 2019, the applicant filed a summons which did not set out the order he was applying for. 

7.In his affirmation in support, he said: “As I have got the order 01.04.2019, so I failed to lodge my claim/apply proper time, order of honourable judge is not perfect.  I have very good ground”. 

The Judge’s May 2019 Decision   

8.The Judge treated the summons as one for extension of time to file an appeal from her dismissal of the application for leave to commence judicial review proceedings.  The applicant did not appear at the date of hearing on 30 May 2019, although the Judge had adjourned the commencement of the hearing for 40 minutes to await his arrival.  She dismissed the application for the reason set out in a decision given on 30 May 2019 (“the Judge’s May 2019 Decision”)[2].  At para.4 she said: “The applicant at the time of his summons dated 3 April 2019, gave no explanation for why he was out of time to appeal. In the absence of his attendance today to explain that, and also because the underlying merits of his case are without merit, as explained in the original Form CALL-1 dated 19 November 2018, there would be no merit in allowing this applicant to have an extension of time to appeal”.      

9.Pausing there, whilst the first sentence in the applicant’s affirmation (set out in para.7 above) may be construed as saying that he received the CALL-1 form only on 1 April 2019, causing his delay in filing of a notice of appeal, this was not supported by any corroborative evidence (eg a postmarked envelope) or explanation from the applicant (eg a change of address) why the CALL-1 form which was sent to him (according to court records) on 19 November 2018 was not received within the usual time.  Instead there was simply a bare assertion that he only received it on 1 April 2019.  In any event, and more importantly, he did not indicate what his “very good ground” was for appealing the Judge’s November 2018 Decision. 

Applicant’s summons before Court of Appeal

10.After the Judge’s refusal to extend time on 30 May 2019, the applicant did nothing until 27 December 2019 when he filed a summons in this Court.  Again, the summons did not set out the order he sought, but we take it as an application for extension of time to appeal the Judge’s November 2018 Decision.  In his supporting affirmation, the applicant set out the following proposed grounds of appeal:

“a) The Honorable Campbell-Moffat J was wrong in law in holding that there was no state acquiescence or involvement.

b) The Honorable Campbell-Moffat J failed to provide detailed reason in support of his decision.” (sic)

11.The applicant did not file his written submissions as directed by the Registrar of Civil Appeals. 

12.Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to do so.

Legal Principles

13.In considering whether to extend time for appealing, the court will 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).

Discussion

14.The applicant’s delay is very substantial and there is no satisfactory explanation.  More importantly, he had not provided any grounds for relief on judicial review.  In the Judge’s November 2018 Decision she had noted:

“Leave to apply for judicial review

10.  Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11.  There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review to show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.  This application is dismissed as being out of time.  There is no requirement to consider further the application for leave, however that has been done in an attempt to ensure consolidation of these matters should it be considered that leave to extend time should have been ordered.

13.  Despite the fact that the Applicant is out of time, in any event, he did not submit any grounds of review save to indicate he wished a re-hearing on the facts.  I have nevertheless considered the papers carefully.  I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  The facts were discreet and very old and there were no supervening events between 2005 and now.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

14.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I would therefore refuse leave for judicial review if I had not already dismissed this application for being out of time.”

15.It would be clearly seen that the applicant’s proposed ground (a), set out in para. 10 above, is simply not engaged in this case.  As for the proposed ground (b), as can be seen from the above, the Judge had in fact provided reasons in detail in her November 2018 decision. There is therefore no reasonable prospect of success in his intended appeal. 

Order

16.For the above reasons, we dismiss the applicant’s summons filed on 27 December 2019.

17.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.

The applicant, unrepresented, acting in person.