Re Shaikh Qutubuddin

CAMP 76/2020

[2020] HKCA 1051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 76 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 358 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):

1.This is an application to extend time to appeal a decision of the Court of First Instance refusing leave to commence judicial review proceedings.

Director of Immigration’s Decision

2.On 29 February 2016 and 10 January 2017, the Director of the Immigration Department (“the Director”) rejected the applicant’s claim for non-refoulement which had been advanced on the grounds of torture, violation of Bill of Rights Articles 2 and 3, and persecution risk (“the Director’s Decision”).

Applicant’s appeal/petition

3.The applicant filed an appeal/petition to appeal the Director’s Decision.  Essentially the applicant’s case is as follows.  He is an Indian national.  He claimed that in April 2011, his wife killed herself, but his brother-in-law thought that he had killed her.  The brother-in-law (who the applicant claimed is a member of a political party and was close to a municipal councillor) assaulted the applicant on one occasion, and made a report to the police against the applicant, his mother and brother suggesting that they were responsible for the death.  The applicant bribed a police officer who advised them to leave.  The applicant went to Mumbai and then to New Delhi where his stay (totalling 5 months) was uneventful.  In September 2011 he flew from New Delhi to Hong Kong.  He did not make a claim for non-refoulement until April 2013. Meanwhile, despite the brother-in-law’s objections, the applicant’s mother and brother were given bail by the court in September 2011.  His mother has since died and he claims he has not had much contact with his brother since he came to Hong Kong.

4.After two hearings on 18 January 2017 and 3 March 2017, the Torture Claims Appeal Board (“TCAB”) rejected the appeal/petition for reasons appearing in a Decision of 10 April 2017 (“TCAB Decision”).  Essentially the TCAB rejected the applicant’s claim as the Board did not find his account of his brother-in-law’s influence truthful, his allegation that he would not get a fair trial was contradicted by the fact that his mother and brother were granted bail despite his brother-in-law’s objection, and his own uneventful stay in Mumbai and New Delhi showed that he could safely relocate there without threat from the brother-in-law.  

Application for leave to judicially review Director’s Decision

5.On 6 March 2018, the applicant filed a Form 86 in the Court of First Instance (“CFI”) in HCAL358/2018 for leave to commence judicial review.  No grounds were stated.

6.In the applicant’s affirmation in support, he said only the following: “I am not satisfy with the Decision of the Immigration Appeal Board.  Besides my life is still in danger in my home country”.  Nor was there any explanation for why he only applied for leave to start judicial review proceedings some 11 months after the TCAB Decision. 

CFI’s 2019 Decision

7.On 22 October 2019, DHCJ Bruno Chan (“the judge”) refused an extension of time for, and dismissed, the application for leave to apply for judicial review of the TCAB Decision.  The learned judge’s observations were set out in the document called “CALL-1 Form” (“the CFI’s 2019 Decision”). 

8.In this Decision, the judge held that “as the last day of the three-month period for the applicant to file his Form 86 fell on 10 July 2017, he was therefore almost eight months late with his application” [para.14].  The judge regarded the delay as substantial and noted that the applicant did not provide any explanation for it [para.15].    

9.The judge also noted that the applicant had not provided any ground for his intended challenge and there was no error of law or procedural unfairness [para.16].

10.Finally, the judge directed the applicant that if he wished to appeal, he would have to seek leave from the CFI within 14 days.

Applicant’s summons in Court of First Instance 

11.On 24 October 2019, the applicant filed a summons in the CFI for “leave … to appeal out of time on the grounds that the applicant did not receive the order within reasonable period of time allowing the applicant to appeal within time”.

12.In his affirmation, the applicant asked for leave to appeal out of time as “I didn’t received the order and judgment within 14 day.  I should be given an reasonable opportunity to present my case exhibits – A”.  The order and judgment he exhibited were the CFI’s 2019 Decision and order made only 2 days before.

CFI’s 2020 Decision  

13.The summons was heard by the judge on 19 December 2019.  In a Decision given on 18 June 2020 (“the CFI’s 2020 Decision”), the judge applied the principles for granting leave to appeal from an interlocutory judgment and held that there was no prospect of success.  Accordingly, the summons was dismissed.

Applicant’s summons in Court of Appeal     

14.On 2 July 2020, the applicant filed a summons in this court in CAMP76/2020 for leave to appeal out of time from the CFI’s 2020 Decision.  This was supported by an affirmation in which he claimed that as “the document” was lost in the post, he did not receive the CFI’s 2019 Decision within 14 days from 18 June 2020 (the date of the 2020 Decision) and he said he therefore missed the deadline to appeal within 14 days of the “date of the judgment”. 

15.On 20 August 2020, the applicant filed written submissions in which he said he knew there was no procedural error but complained about the failure to accept the truthfulness of his claim. 

Discussion

Leave not required for CFI’s 2019 Decision

16.In the CFI’s 2019 Decision, the judge directed 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”.

17.In H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22 (“H and AH”), decided on 14 July 2020 (after the CFI’s 2019 and 2020 Decisions), the Court of Final Appeal held that an order refusing an extension of time and dismissing an application for leave to issue judicial review (like the one made by the judge in the CFI’s 2019 Decision) was appealable as of right [H and AH para.41].  Accordingly, with the benefit of hindsight, it was incorrect for the judge to have directed that the applicant had to apply for leave to appeal in the 2019 Decision, and to refuse leave in the 2020 Decision.

True nature of summons in CAMP76/2020

18.In other words, the applicant could have appealed the CFI’s 2019 Decision as of right, but he should have filed his appeal straight to the Court of Appeal within 14 days thereafter [Rules of High Court, Order 53 rule 3(4)].  He did not do so.  Accordingly, this court should treat the summons filed in this court in CAMP76/2020 as an application for extension of time to appeal the CFI’s 2019 Decision.  Pursuant to Order 59 rule 14A(1) RHC, this court considers it appropriate to decide this interlocutory application on paper.

Principles governing application for extension of time to appeal

19.The principles governing the exercise of the court’s discretion to extend time to appeal are well-established.  The court would consider: (1) the length of the delay; (2) the reasons for delay; (3) the merits of the intended appeal; and (4) any prejudice to the intended respondent (although the lack of prejudice does not mean that time should be extended).

(1) Period of delay

20.As for (1), as discussed above, the applicant should have filed his Notice of Appeal to this court within 14 days of the CFI’s 2019 Decision (i.e. by 5 November 2019).  He filed his summons in this court on 2 July 2020.  The delay is nearly 8 months.

(2) Reasons for delay

21.As for (2), it is noted of course that the applicant had first applied for leave to appeal as a result of the judge’s direction. He did that on 24 October 2019 which is well within time.  He also filed the summons in this court within 14 days of the CFI’s 2020 Decision.  Accordingly, there was a good reason for his delay.     

(3) Merits of intended appeal

22.As for (3) however, there are clearly no merits in the intended appeal.  The TCAB had thoroughly analysed the applicant’s claim and was entitled to make the factual findings set out in its Decision.  The applicant did not advance any valid grounds for judicial review, and it is well-established that an application for leave to issue judicial review is not an opportunity for a re-hearing of the claim.  The judge was clearly right in refusing to extend time in the 2019 Decision.   

Order

23.As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, the applicant’s summons filed on 2 July 2020 is dismissed.  Since the present application is totally without merit, it is ordered under Order 59 r. 2A(8) RHC that the applicant may not request this court’s determination to be reconsidered at an oral hearing. 

The applicant, unrepresented, acting in person.