RE IRFAN MASHOOQ

CAMP 78/2019, [2023] HKCA 1371

On Appeal From [2018] HKCFI 1090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 78 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 710 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 handed down judgment on 25 October 2019 ([2019] HKCA 1181) (“the CA Judgment”) dismissing the applicant’s application for extension of time to appeal against an order of Campbell-Moffat J (“the Judge”) given on 29 June 2018, in which she dismissed the application of the applicant for leave for judicial review in respect of his non-refoulement claim.

2.  On 21 August 2018, the applicant filed a summons in the Court of First Instance for leave to appeal out of time, which the Judge dismissed on 9 October 2018.

3.  On 7 May 2019, the applicant filed a summons in this court, which as mentioned earlier we dismissed on 25 October 2019.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in the CA Judgment and will not be repeated here.

4.  On 18 August 2023, the applicant filed a Notice of Motion for leave to appeal the CA Judgment to the Court of Final Appeal.  However, it was out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) (Cap. 484) stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The deadline for filing the Notice of Motion expired on 22 November 2019.

5.  However, under sections 24(5) and 24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party. 

6.  In the present case, the applicant was late by over three years, which is substantial and inordinate.  He explained in his supporting affirmation that he was not aware of the procedural rules as a lay person and he did not receive the CA Judgment.  We note from the court file that the CA Judgment was posted on 25 October 2019 to the applicant’s address as stated in the summons he filed on 7 May 2019.  If, for any reason, he did not receive the CA Judgment, he has not explained when and how he first became aware of it.  We do not accept the applicant’s excuse for the delay.   

7.  In any event, as for the merits of the intended appeal, the applicant advanced the following in the Notice of Motion filed on 18 August 2023:

“1.  The learned Judges were wrong as a matter of Law for not having applied the principle of procedural fairness to the decision of the director whereby the director was required to give reasons justifying the decision.

2.  The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3.  There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

4.  Actual life occur different situation then mentioned COL information, Officer and courts prefer to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

5.  The Judge did not apply the law properly & Procedural unfairness.”

8.  In compliance with the directions of the Registrar of Civil Appeals made on 18 August 2023, the applicant lodged his written submissions in support of the Notice of Motion on 4 September 2023.  We consider it appropriate to determine this Notice of Motion on paper without an oral hearing. 

9.  In his written submissions, the applicant quoted passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which concerns the late filing of a notice of appeal to the Board.  However, he did not explain how the aforesaid cases and statutory provision were related to or would assist his case.

10.  Section 22(1)(b) of the HKCFAO provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11.  Having regard to the CA Judgment, the applicant’s intended appeal has no merit at all.  No question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

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

13.  By reason of the above, the Notice of Motion filed on 18 August 2023 is dismissed.

The applicant, unrepresented, acting in person

CAMP 78/2019

[2019] HKCA 1181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 78 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 710 OF 2017)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 29 June 2018, Campbell-Moffat J. (“the Judge”) refused the applicant’s application for leave to start judicial review in respect of his claim for non-refoulement (“the Judge’s June Decision”), which application had been brought in time. Under Order 53 rule 3(4)Rules of the High Court (“RHC”), if the applicant wished to appeal the Judge’s June Decision to the Court of Appeal, he had to file a notice of appeal within 14 days. Leave would not be required.

2.  However, it was not until 21 August 2018 that the applicant filed a summons applying for an extension of time to appeal.  This application was dismissed by the Judge on 9 October 2018 (“the Judge’s October Decision”)[1]. 

3.  The Judge’s October Decision was an interlocutory order, and if the applicant wished to appeal it as such, he had two routes. 

(A)  He would have to ask the judge at first instance for leave within 14 days of the interlocutory order: Order 59 rule 2B(1)(a) RHC.  If the judge refused leave, he could renew his application for leave before the Court of Appeal within 14 days of the judge’s refusal: Order 59 rule 2B(3) RHC. 

(B)   Alternatively, with the Court of Appeal’s permission, the application for leave may be made direct to this court: Order 59 rule 2B(4) RHC. 

4.  In the present case, the applicant did not take either route to appeal against the interlocutory October Decision.  Instead, on 7 May 2019 the applicant filed a summons in this court, asking to “renew his application for extension of time to appeal”. 

5.  The first question is whether the Court of Appeal should in these circumstances:

(1)  entertain this application as a direct application to this court for an extension of time under Order 3 rule 5 RHC to appeal the Judge’s June Decision,

or alternatively,

(2)   insist on the applicant taking the approach set out in para. 3 above because the Judge’s October Decision was interlocutory in nature.

6.  It was held in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at paras. 3-8 that where there were the two possible approaches as set out in para. 5 above, the more straightforward approach set out at (1) should be adopted.  This would be more in line with the underlying objectives in Order 1A rule 1 RHC.

7.  Accordingly, we have decided to deal with the application as an application for extension of time to appeal the Judge’s June Decision.  We have also decided that it is appropriate to deal with this application on the papers under Order 59 rule 14A RHC.

8.  It is well-established that in deciding whether to exercise the discretion to extend time to appeal, the court considers (1) the length of the delay; (2) the reasons given for the delay; (3) the merits of the intended appeal; and (4) any prejudice to the other party.

9.  First, although we note the applicant first asked the court to extend time by an application made in August 2018, having failed to obtain an extension in October 2018, he did not apply to this court until May 2019.  This further delay of some 6 months is extremely substantial.

10.  Secondly, the reason given in the applicant’s affirmation in support simply said: “I would like to reject and review the decision made by the court as I have not received any document from the court until my CIC officer give me a copy of this order to me and told me my case is finished”. The allegation that he had not received the court order is uncorroborated. The court order was sent to the address he had provided in the documents he had filed with the court.  He was already out of time for his intended appeal from the Judge’s June Decision, and one would have expected a person who is serious in asserting his rights by litigation to pursue them with all due speed.  The following may further be noted in the Judge’s October Decision ([2018] HKCFI 2313):

“7. The applicant appeared in person. He submitted that he was late in filing his appeal because he was living with a friend at the time and not at the address he had provided to the Immigration Department. It was only when he went to sign on that he provided a new address and thereafter the relevant documents were sent to him. He had no other excuse.

8. The applicant has now been in Hong Kong since 2009. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications. He fully understood that they required an up to date address in order to correspond with him. The explanation he has offered to this court, whilst frank, was not the same as he suggested in the letter appended to the summons, which was that he did not understand the procedure. The reason this application is late is to be put entirely at his own door. He was notified promptly of the decision of this court and, had he been living at his registered address, he would have been made aware of what was required of him should he wish to appeal that decision. It was incumbent upon him to do so promptly. He put himself in a position where that could not happen. … ” (Emphasis added).

11.  Thirdly, the applicant has not shown any merits in his intended appeal from the Judge’s June Decision.  In that Decision, the Judge had closely examined the decision of the Torture Claims Appeal Board (“the TCAB”) dated 14 July 2017 rejecting his non-refoulement claim.

12.  This court has also read the TCAB’s decision which shows it had thoroughly examined the applicant’s case. 

13.  The TCAB found that the applicant did not adduce any credible or reliable evidence to show that he had been persecuted by the Sunnis particularly Abid Raza (“AR”).  In particular, the Board noted that, as acknowledged by the applicant, AR was under government surveillance at the time of the alleged attack on the applicant in June 2005 (para. 37).  Also, there was a news report in June 2016 that AR has been in prison awaiting the restoration of his death penalty, which the applicant simply denied without any objective evidence in support (para. 41). Further the applicant himself accepted that he could relocate internally (para. 86).  The TCAB concluded that the applicant had failed to make out a case for non-refoulement protection under any of the applicable grounds.   

14.  For the reasons set out in [10] – [12], the Judge dismissed his application:

“Grounds of review

10.  There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.  Despite there being no grounds of review, I have considered the papers, grounds and submissions carefully. The Applicant complains about the decision of the TCAB but I have nevertheless reviewed both Decisions to ensure complete fairness to an unrepresented Applicant. 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. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12.  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 therefore refuse leave for judicial review.”

15.  In assessing the prospect of success of the intended appeal, we would have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11]. 

16.  We do not see any prospects of success in his proposed appeal from the Judge’s June Decision.  The TCAB is the fact-finding tribunal and it had found that the applicant had failed to establish his case because he failed to adduce any credible evidence to support any of the applicable grounds. 

17.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the Judge’s June Decision is present in this case and it would be futile to extend the time for an intended appeal devoid of merits.  The Judge’s June Decision was clearly right (as indeed was her October Decision).  Accordingly, we dismiss the applicant’s summons.

The applicant, unrepresented, acted in person.