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MOHAMMAD ESHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2019] HKCFI 1705-EN-2019-07-12

MOHAMMAD ESHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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HCAL 1138/2017

[2019] HKCFI 1705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1138 OF 2017

___________________

BETWEEN
	MOHAMMAD ESHAN	Applicant
and
	TORTURE CLAIMS APPEAL BOARD /	Putative Respondent
	NON-REFOULEMENT CLAIMS
	PETITION OFFICE
and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

___________________

Before:

Hon Campbell Moffat J in Chambers

Date of Hearing:	4 July 2019
Date of Decision:	12 July 2019

___________________

D E C I S I O N

___________________

Introduction

1. This is an application listed on 3 May 2019 to appeal my decision of 27 November 2018, refusing leave to extend time to apply for judicial review. The applicant had 14 days in which to apply to appeal that decision. He did not do so. He now requires leave to extend time to appeal against that order. The applicant appeared in person and did not require an interpreter as he has an excellent command of the English language.

Procedural background

2. 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 legally on 18 April 2014 and thereafter overstayed. He was arrested on 23 May 2014. He submitted a non‑refoulement claim form on 31 December 2015 and was interviewed by the Director of Immigration (“the Director”) on 21 January 2016. The Director dismissed his claim under all heads, by Notice of Decision on 10 March 2016 and by Notice of Further Decision on 8 February 2017. He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Gregory Brock (“the Adjudicator”), heard him on 20 February 2017. The Adjudicator refused his appeal on 29 March 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers. He was out of time. His application for leave to apply for judicial review was considered as an application to extend time to apply for judicial review and was refused on 27 November 2018. He had 14 days from that date to appeal that decision which would have expired on 11 December 2018. By way of summons filed on 4 July 2019, he seeks leave to appeal out of time.

4. An applicant does not usually 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 53, rule 3(4) of the Rules of the High Court 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. The court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

5. 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. This was not done. Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time. The applicant claims he did not receive the Form CALL‑1 and Order on time and that he received it some three weeks late. That does not excuse a delay of some five months. He also submits that he was misled by immigration staff who told him that he had no recourse but to leave the country. He submits that he did not initially realise he could appeal and when he was informed that he could do so, he could not afford a lawyer. When tested however, the applicant accepted he mixes in the refugee claimant community and that many of his friends are in a similar position to him. I do not accept that he would not have known he could appeal, not least because it says so on the Form CALL‑1. A perusal of his summons and supporting affirmation indicates a well‑educated man with a firm grasp of the English language. He ultimately drafted and submitted the documentation himself without the assistance of a lawyer and was clearly able to do so before May 2019.

6. Even if the court does accept the reasons given for the delay, the court is required to examine whether there is any merit in the applicant’s appeal[1]. The role of the court in judicial review is not to provide a further avenue of appeal from the decisions of the Director and the Adjudicator[2]. It follows that an appeal from this court should not be founded upon any attempt to appeal those same decisions. It is an appeal from the decision of this court and the applicant should look to draft grounds of appeal on that basis. The applicant had not turned his mind to the decision of this court dated 27 November 2018. He wished to appeal the Decision of the TCAB, which, because of his tardiness in submitting his Form 86, was not substantively considered during the leave to extend time process.

7. The applicant was unable to advance any grounds of appeal from the decision of this court and therefore the court was unable to find that there would be a reasonable prospect of success in the intended appeal.

Conclusion

8. The explanation offered to this court, as to why the applicant took until May 2019 to appeal the decision of this court is not acceptable. I have nevertheless considered his underlying application. It has no merit as explained by both the Director and the Adjudicator and as outlined in the Form CALL‑1. There was no explanation for the delay to file the Form 86 and the grounds of review amounted to an allegation that the hearing before the TCAB was unfair as he had no legal representation and that no proper reasons for the Decision had been given. Before this court, the applicant accepted that he had every opportunity to make representations to the TCAB and that his veracity had been found wanting. He also accepted that the Adjudicator had given his reasoning in full as to why the applicant had not been believed and had nevertheless gone on to consider his claim at its highest.

9. There was no complaint before the court as to the decision to refuse leave to extend time. The applicant wishes the Court of Appeal to consider his situation afresh. Having considered the length of delay, reason for the delay and underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10. The applicant’s summons filed on 4 July 2019 be dismissed.

	(A P Campbell Moffat)
	Judge of the Court of First Instance High Court

The applicant appeared in person.

[1]Re Mehmood Ikhlas CAMP 28/2019 [2019] HKCA 567

[2]Nupur Mst v Director of Immigration[2018] HKCA 524; Re Md Shohel Sheak[2018] HKCA 714

HCAL 1138/2017

[2018] HKCFI 1903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1138 of 2017

BETWEEN

	Mohammad Eshan	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of the documents only; or
consideration of the documents and the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Extension of time for leave to apply for judicial review be refused.

Observations for the Applicant:

1. The applicant entered Hong Kong legally on 18 April 2014 and overstayed from 26 April 2014. He was arrested by the police on 23 May 2014 and submitted a non-refoulement (“NRF”) claim by way of written representation on 28 May 2014. He was released upon recognisance on 27 June 2014. His NRF claim form was submitted on 31 December 2015.

2. The applicant attended a screening interview on 21 January 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 10 March 2016 and by Notice of Further Decision (re BOR 2) on 8 February 2017. The adjudicator of the TCAB, Mr Gregory Brock (“the Adjudicator”), heard him on 20 February 2017. The Adjudicator refused his appeal on 29 March 2017.

Background to claim

3. The applicant is an Indian national, born on 4 November 1983 in Kolkota. Between 2011 and 2012, the applicant worked in Thailand, thereafter, until 2014, he worked in Saudi Arabia. In early 2014, the applicant maintains that he was running his own business in Hong Kong.

4. The applicant’s claim is based upon his operation of the Mominpore Welfare Bustee Committee (“the Club”), which illegally occupied government land and which he maintains sought to educate poor children, which it did by raising donations from the general public and political parties. Although the applicant had originally been its General Secretary at the time of its inception in 2010/11, he had thereafter been working abroad. Whilst he was away from India, the Club came under scrutiny from the All India Trinamool Congress (“TMC”), which considered that the Club was operating illegally. During a return visit to India in January and February 2014, the applicant was involved in negotiations to include TMC members in the Club and in its management. In one such meeting a fight broke out and the police were called. No one was arrested but several people required medical treatment on both sides of the argument. The Club was closed down but whilst the applicant was in Hong Kong in April 2014, another fight broke out in which a Club member was killed. The perpetrator was apprehended and prosecuted. Even though the applicant had been out of the country for some three years, the applicant believes variously that if he returns to India, a) he will be prosecuted for illegally operating the Club, or b) the TMC might kill him; or c) he will be under pressure to continue working for the Club because it is profitable; or d) the killer’s relatives might harm him or put him in jail because the imprisonment of the killer was his fault; and in addition that, e) he had been previously assaulted whilst attending political rallies and was being looked for by his political opponents; also, f) his wife had been mentally tortured as she had received verbal insults that her husband was a thief, deceitful and would not return to her.

Form 86 out of time

5. In accordance with Order 53 rule 3, the applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review. This was dated 22 December 2017. Under Order 53 rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. Where the relief sort is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from 27 March 2017. The Notice of Appeal should therefore have been submitted by 27 June 2017. It was just short of six months late. The Notice of Decision was sent to the applicant’s registered address; the same address he relies upon for these proceedings. The applicant has submitted no explanation for his delay and has not sought leave for an extension of time. I have never the less considered the principles[1] applicable to granting such an extension if an application had been made and those are:

1) the length of delay;
2) the reasons for delay;
3) the prospects of success in the intended appeal; and
4) the prejudice to the putative respondent if extension of time were granted.

6. In this case the applicant has not offered any explanation for this delay. In view of that omission, he must satisfy the Court that there are real prospects of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted. Given the following findings, the latter need not be considered.

7. There is no reason at all before the court as to why an extension of time for leave to apply for judicial review should be given. The applicant’s claim as explained above is not reasonably arguable and does not have a realistic prospect of success. The applicant was considered a “wholly unreliable witness”by the Adjudicator who dealt with his case in a wholly proper way. The applicant’s grounds of appeal mirror almost exactly those received by this court in respect of other leave applications and bears little resemblance to, or connection with, the hearings in question. It has very obviously been amended to add the applicant’s nationality, the relevant dates and the name of the Adjudicator. Grounds of this kind are to be deprecated. In any event, for the reasons given above, this application is dismissed as being out of time.

8. Where the applicant intends to appeal this refusal to grant leave to extend time, he must appeal this decision to the judge against whose order his appeal is sought, within 14 days of the date of this order, in accordance with section 14AA of the High Court Ordinance, Cap 4 and Order 59 rule 2B Rules of the High Court.

Dated 27^th day of November 2018.

(Ms Queenie Mak)
for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).	Sent to the Applicant on 27/11/2018 Mohammad Eshan Applicant’s ref. no: Nil.	Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27/11/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3315/16/3/120/IN778 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2330/15 (formerly RBCZ 1951/14) INCZ/9000134/17 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
If extension of time has not been granted, the Applicant or his legal representative must:
(a) first apply to this court within 14 days of the date of this order by way of summons for leave to appeal, (b) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal, (c) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper, (d) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions.

Form CALL-1

[1]Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015).

	consideration of the documents only; or
	consideration of the documents and the Applicant being present/absent in open court;