Re Haque Fataul Alias Masood a K M

CAMP 84/2020

[2021] HKCA 31

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 84 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 635 OF 2018)

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Before:  Hon Yuen and Au JJA in Court

Date of Written Submissions: 19 August 2020

Date of Judgment:  12 January 2021

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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 (“CFI”) refusing leave to commence judicial review proceedings.

Director of Immigration’s Decision

2.On 20 February 2017, the Director of Immigration (“the Director”) rejected the applicant’s claims 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 to TCAB/adjudicator

3.The applicant filed an appeal/petition to appeal the Director’s Decision.  Essentially the applicant’s case is as follows.  He is a Bangladeshi national.  He claimed that he was the area organizing secretary of the JI political party which was a rival of the AL, which won the general election in 2008.  In 2009, AL members vandalized the JI office in his area.  He had been previously warned and so stayed away from the office.  He and his family moved away from the area.  He moved first to Dhaka and then to Chittagong.  In 2013, he left Bangladesh for Singapore with a forged passport.  He then came to Hong Kong where he has remained since.  He claimed that he was told that in 2016 (some 3 years after he had left the country), some AL members held his son overnight who was told that if he (the applicant) did not leave the JI, the son would never see him again.  In any event, the applicant has lost contact with the JI.       

TCAB Decision

4.On 17 November 2017, the Torture Claims Appeal Board (“TCAB”) rejected the appeal/petition for reasons appearing in its Decision (“the TCAB Decision”). Essentially, the TCAB found, on the applicant’s own case, that for the 4-year period between the vandalizing of the office in 2009 and his departure from Bangladesh in 2013, he had no physical encounter with the AL people he claimed he feared [78].  The conduct he alleged had not attained the degrees of severity or risk required for his claims [78, 150, 154, 158].  Nor was there any evidence of involvement of public officials [80, 130].  In any event, safe relocation within Bangladesh was available [143-144].     

Application for leave to judicially review TCAB Decision

5.On 13 April 2018, the applicant filed a Form 86 in the CFI in HCAL635/2018 for leave to commence judicial review. 

6.The grounds were that the TCAB failed to make “sufficient enquiring before finalizing the determination”, and that since he had limited options at his disposal to bring his evidence before the tribunal when he was in custody at the detention centre, he had not been given “sufficient chance to arrange relevant evidence”.  The only explanation given for why he only applied for leave to start judicial review proceedings nearly 5 months after the TCAB Decision was that “I did not have any of my documents earlier” and that it took him “some time to arrange them”. 

CFI’s 2019 Decision

7.On 4 December 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 17 February 2018, he was therefore almost two months late with his application” [para.11].  The judge did not regard the delay as insignificant or insubstantial, and rejected the applicant’s excuses for the delay (imprisonment and medical treatment) as it was not supported by any documentary evidence [para.12].    

9.The judge also noted that the applicant’s grounds were mainly just broad and vague assertions, and noted that the applicant had not provided any further or additional evidence that he complained the TCAB had failed to give him the chance to obtain [para.13].

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 16 December 2019, the applicant filed a summons in the CFI.

12.In his supporting affirmation, the applicant said his application was for “leave that the time be extended to apply for judicial review”. 

CFI’s 2020 Decision  

13.The summons was heard by the judge on 26 May 2020.  In a Decision given on 24 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 6 July 2020, the applicant filed a summons in this court in CAMP84/2020 for leave to appeal out of time from the CFI’s 2020 Decision.  He claimed he did not receive the CFI’s 2019 Decision within 14 days from 24 June 2020 (the date of the 2020 Decision) as they had been lost in the post, and he could only get them after searching the court file. 

15.On 19 August 2020, the applicant filed written submissions which were either general propositions of law or which did not bear any relevance to his case.

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 CAMP84/2020

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 CAMP84/2020 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 18 December 2019).  He filed his summons in this court on 6 July 2020.  The delay is nearly 7 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 16 December 2019 which would have been within time had he filed a notice of appeal in this court.  His summons in this court was also filed within a fairly short period after 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 6 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.