RE MOHAMMAD FIROJ AND OTHERS

CAMP 205/2019

[2020] HKCA 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 205 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 232 OF 2017)

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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 court (Hon Yuen and Barma JJA) handed down judgment on 10 January 2020 ([2020] HKCA 40) dismissing the applicants’ application to extend time to appeal an order of M Poon J (“the Judge”) given on 22 January 2018 refusing to give leave for judicial review in respect of their non‑refoulement claim. The applicants had taken out a summons on 11 July 2019 for extension of time to appeal, which the Judge dismissed on 13 August 2019. The facts and issues in the appeal before the Court of Appeal, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

2.  The applicants subsequently applied, by a Notice of Motion on 13 January 2020, for leave to appeal to the Court of Final Appeal.

3.  On 20 January 2020, the Registrar of Civil Appeals directed that the applicants shall lodge their written submissions on or before 29 January 2020, and the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper.  The applicants filed their written submissions dated 29 January 2020 by post.  They were received by the court on 19 February 2020.  As the appeals registry was closed due to the public health situation in Hong Kong, we shall take it that their written submissions were filed on time. 

4.  In the applicants’ Notice of Motion, they made various complaints about the decisions made by the Director of Immigration and the Adjudicator of the Torture Claims Appeal Board. These issues had been canvassed before the Judge. 

5.  In their written submissions, the applicants repeated their non-refoulement claims under the heads of BOR 2 risk, BOR 3 risk, torture risk and persecution risk.  They also stated that their lives are in danger if they returned to their home country in light of their religion and the recent condition in India. 

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that leave to appeal to the Court of Final Appeal may be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal. 

7.  No question of great general or public importance has been identified in the Notice of Motion. 

8.  Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b). 

9.  By reason of the above, the Notice of Motion dated 13 January 2020 is dismissed. 

CAMP 205/2019

[2020] HKCA 40

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 205 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 232 OF 2017)

__________________________

__________________________

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JUDGMENT

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

1.  By summons filed in CAMP205/2019 in the Court of Appeal on 26 August 2019, the applicants applied for an extension of time to appeal the order of M Poon J (“the Judge”) dated 22 January 2018 refusing leave to start judicial review proceedings concerning their non-refoulement claims (“the 2018 Decision”). The applicants had taken out a summons in HCAL 232/2017 on 11 July 2019 for an extension of time to appeal. That summons was dismissed by the Judge on 13 August 2019 (“the 2019 Decision”).

2.  Under Order 53 rule 3(4) Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  The deadline was therefore 5 February 2018.  The applicants did not lodge an appeal in time.      

3.  It was not until 17 months later, on 11 July 2019 that the applicants applied to the Judge for an extension of time to appeal the 2018 Decision. That culminated in the 2019 Decision. 

4.  In effect, the present application is for this court to extend time to appeal the 2018 Decision.

5.  Under Order 59 rule 14A(1) Rules of the High Court, 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 determine the present application on paper without a hearing.

LegalPrinciples

6.  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.

Discussion

7.  As for (1), the delay was of 17 months.  It is clearly a substantial delay. 

8.  As for (2), the reasons for the delay, the 1^st applicant said in his affirmation of 26 August 2019 (typed in English) that he did not receive the order in the 2018 Decision because it was “send to my address by registered post at Pei Ho Street.  But not writing for house No.  Then the post was returned to the High Court on 20 February 2018”. 

9.  However, that is incorrect.  This court has inspected the court file.  The envelope which contained the order of the 2018 Decision had the applicants’ full address (including the house number) correctly typed.  So the 1^st applicant’s allegation that the house number had not been written down is demonstrably false. 

10.  The order was sent by registered post, but the envelope was marked “unclaimed” by the Post Office. In other words, even though a notice for its collection had been left at the address, the applicants had not gone to the Post Office to collect it.  In this respect, the 1^st applicant made a bare assertion in his affirmation of 26 August 2019 that he checked the mailbox twice a day and had not seen any notice of collection from the Post Office.  That assertion has to be assessed in light of his false assertion that the house number had not been written.  In any event, the applicants have not explained why they made no inquiries whatever with the court of the result despite the lapse of some 17 months after the hearing. 

11.  The 1^st applicant also alleged that he did not read or write English and he had no idea it was possible to appeal.  However as noted above, his affirmation was typed in English.  So clearly there was someone conversant in English to whom he gave instructions in Hindi, who would have been able to make relevant inquiries on his behalf.  He has not explained how and when he was able to obtain assistance from that person to prepare his affirmation, and whether he could have done so before the deadline if he had acted timeously.     

12.  However, the most important consideration is (3) the prospect of success of the intended appeal.  The applicants’ intended judicial review was against the decision of the Torture Claims Appeal Board (“the TCAB”) dated 21 April 2017 (“the TCAB’s Decision”) dismissing their appeal against the decision of the Director of Immigration of 24 December 2015 (“the Director’s Decision”).

13.  The brief background is as follows.  The 1^st applicant is the husband of the 2^nd applicant and they are the parents of the 3^rd and 4^th applicants.  They are all Indian nationals.  In 2008 the 1^st applicant came to Hong Kong as a visitor and overstayed.  He made a claim for non refoulement on the basis discussed later.  Whilst in Hong Kong he committed some criminal offences and he was released from prison in 2012.  In 2014 the other applicants came to Hong Kong as visitors and also overstayed, joining the 1^st applicant’s application for non-refoulement.

14.  The applicants’ allegations in support of their claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, it is alleged that the 1^st applicant would be harmed or killed by his creditor Amin for his inability to repay a loan.  In 2008, he was assaulted by some people who demanded that he repay his loan.  After he came to Hong Kong, the 2^nd applicant was assaulted, so she came to Hong Kong with the children.     

15.  By the Director’s Decision, the Director rejected the applicant’s claim on the grounds of BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

16.  The applicants appealed to the TCAB which rejected the 2^nd applicant’s allegation of assault as it had not even been mentioned in her claim form.  The TCAB also rejected the 1^st applicant’s case due to the vagueness of his allegations in which significant details were totally missing.  Even on the applicants’ version of events, the TCAB found none of their claims could be established eg because of the low level of the alleged assaults, and the availability of internal relocation.      

Application for leave to start judicial review

17.  On 24 May 2017, the applicants filed a Form No. 86 to apply for leave to judicially review the TCAB’s Decision.  The grounds in the affirmation in support were summarized by the Judge in para 4 of the 2018 Decision.

The 2018 Decision

18.  As mentioned earlier, the Judge refused leave for reasons set out in [6] - [9] of the Form CALL-1 ([2018] HKCFI 66):

“6.  The Adjudicator was alive to the issue of the alleged “abduction” of A2’s parents.  (Decision para 4.1) This was considered together with the other evidence of A1.  After assessing his evidence, the Adjudicator found him dishonest and unreliable. (para 4.6)

7.  Whilst the applicants complained about the insufficiency of time and assistance to prepare for his appeal, they attended and indeed participated in the hearing before the Adjudicator.  According to paragraph 4.1 of the Decision, A1 spoke for himself and on behalf of A2 and the children.  He understood his rights and he decided to answer questions by the Adjudicator.  Further, according to paragraph 18 of the Decision, the Adjudicator had put the relevant COI and the implications to A1 and taken into account the comments that he had to make.  The adjudicator was entitled to come to the conclusion as he did.

8.  It is clear from the Form 86 and the Affirmation filed for the purpose of this leave application, and indeed what he told the court at the hearing about a friend helped him to compile these clearly shows that the applicants must have access to and was able to seek the necessary advice and assistance that was required.

9.  The claim had been thoroughly canvassed and assessed by reference to the applicable laws and principles.”

Grounds of appeal to the Court of Appeal

19.  On 17 September 2019, the applicants filed Written Submissions purportedly in support of the application before this court.  The ground of appeal [15] however refers to (a) the 1^st applicant’s position at CITU, a seamen’s union and (b) to a person called Peter.  These had never been mentioned in this case.  The submissions also referred to persons whose names had never even been mentioned (Delaware, Peter), a place which had never featured (Bangladesh) and alleged threats to the 1^st applicant in his capacity as a member of the seamen’s union (which was never his case).  In other words, the ground of appeal does not relate to this case at all, and no grounds of appeal have been proffered in relation to the case.

20.  Given that the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicants’ summons filed on 26 August 2019.

21.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) Rules of the High Court that the applicants may not request our determination to be reconsidered at an oral hearing.