RE MONDAL ENTAJ

CAMP 85/2019

[2020] HKCA 136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 85 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 692 OF 2017)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1.  On 22 October 2019, this Court (Kwan VP and Cheung JA) handed down a decision dismissing the applicant’s application for an extension of time to appeal against the decision of High Court Judge Campbell-Moffat given on 5 July 2018 in which she refused to grant leave to the applicant to apply for judicial review.

2.  The facts and issues in the application before the Court of Appeal, as well as the Court’s reasons for dismissing it, were set out in our said decision.  We will not repeat them.

3.  The applicant now applies, by a notice of motion and an affirmation filed on 22 November 2019, for leave to appeal against our decision to the Court of Final Appeal out of time.  Contrary to the directions of the Registrar of Civil Appeals dated 25 November 2019, the applicant has failed to lodge written submissions by 6 December 2019.  We will deal with this application on the basis of the applicant’s notice of motion and affirmation filed.

4.  Before the Court may grant an extension of time, good grounds have to be shown by the applicant, bearing in mind that he has already had his day in court twice when he makes the present application.  The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal and the prejudice to the other party.

5.  Under section 24 of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’), if an application for extension of time to appeal is refused by the Court of Appeal, the applicant has 28 days from the date of refusal to file his or her notice of motion (i.e. by 19 November 2019).  The applicant is only a few days late and we will disregard his delay. 

6.  In respect of the merits of the application the applicant stated in his notice of motion that our decision contained errors of law, that the decision maker relied on country of origin information to his disfavour, the courts ignored the overwhelming evidence of violence towards minorities and the Judge’s decision was biased.

7.  The applicant in his affirmation explained the reason why he was late, but we have already accepted such delay so this is not an issue.  

8.  Under section 22(1)(b) of the HKCFAO, leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

9.  The matters stated by the applicant in his notice of motion and affirmation do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  Nor is it apparent to us that there is any such question in his notice of motion and affirmation.

10.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11.  As the proposed appeal has no prospect of success, we refuse to extend time and dismiss the notice of motion filed on 22 November 2019.

CAMP 85/2019

[2019] HKCA 1182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 85 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 692 OF 2017)

________________________

________________________

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.1 On 27 September 2017, the applicant issued his application for leave for judicial review by Form 86.

1.2 The applicant’s intended judicial review was against the Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 30 August 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 9 May 2016 rejecting his non-refoulement claim.  The application was filed within time.

1.3 On 5 July 2018, Campbell-Moffat J dismissed the applicant’s application.  

1.4 The applicant was entitled to appeal against the Judge’s refusal as of right.  But if he did not do so within the 14-day period specified by law, he had to obtain an order for extension of time to appeal.  Being about 3 months out of time, the applicant issued an application on 12 October 2018 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 15 March 2019 rejected the applicant’s application.  

1.5 On 9 May 2019, the applicant by summons issued a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paras 3 to 8.

1.6 Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application like the present one without an oral hearing.  Having considered the summons and the affirmation filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

2. Briefly stated, the applicant is an Indian national.  He entered Hong Kong legally on 12 April 2014.  He overstayed as of 27 April 2014.  He was arrested on 13 May 2014.  He subsequently raised a non-refoulement claim based on his fear that a moneylender would threaten his life if he did not repay a borrowed sum.

3)  The Director’s Decision and the Director’s Further Decision

3.1 The Director decided against the applicant’s non-refoulement claim on 9 May 2016.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2 By a Further Decision of the Director dated 29 December 2016, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against the applicant.

4)  The Board’s Decision

4. The applicant appealed against the Director’s Decision to the Board on 23 May 2016.  The oral hearing was conducted on 27 January 2017.  The Board dismissed the applicant’s appeal on 30 August 2017.  In gist, the Board found that the alleged risk of harm described by the applicant was very low.

5)  Decisions of the Judge

5.1 The applicant did not request an oral hearing for his application for leave to apply for judicial review.  The matter was considered on paper.  The Judge held that the applicant provided no grounds for review.  No error of law or procedure was found.  

5.2 The applicant was absent from the hearing on 15 March 2019 and the Judge dealt with the application for extension of time on paper and dismissed it.

6)  Legal principles

6. In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1) Length of the delay;

(2) Reasons for the delay;

(3) Prospect of the intended appeal;

(4) Prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1) Length of delay and reasons for the delay

7.1 The applicant was more than two months late when he filed summons in the court below for extension of time to appeal. The Judge considered that, in any event, there was no merit in the applicant’s application. No grounds of review were provided by the applicant.

7.2 In our view, the length of delay for his first extension of time to appeal application was not insubstantial. Therefore, the intended appeal must satisfy real prospect of success before an extension of time will be granted: Re Ansar Muhammad[2018] HKCA 227.

(2) Prospect of the intended appeal

7.3 In our judgment, the applicant does not meet that threshold. Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.

7.4 In the present application, the applicant in his summons merely stated that the decision of the Judge was unfair and unreasonable. He stated that the reason for his late application was because he received the court’s letter late. We are of the view that these are bare allegations unsupported with reason nor evidence. No particulars were provided by the applicant.

7.5 The content of the supporting affirmation of the applicant is generally undecipherable. Trying our best, the applicant seemed to have confused submissions that normally appear in an extension application with submissions that normally appear in a leave to the Court of Final Appeal application. First, the applicant stated that he was applying to the Court of Final Appeal, when in fact he was applying in the Court of Appeal. Second, the applicant stated his case number being ‘120 of 2018’, when in fact it was ‘CAMP 85 of 2019’. Third, he stated that there was some kind of general legal importance for the Court to consider his case on BOR 2, BOR 3, torture risk and persecution risk without any explanation of what he meant.

7.6 The applicant has not identified any error in the decision of the Judge, we are of the view that the intended appeal does not have any prospect of success.

8)  Disposition

8. As the intended appeal is unarguable, it will be futile to grant any extension of time.  Accordingly, we will dismiss the applicant’s summons dated 9 May 2019.

The applicant, unrepresented, acting in person