RE SALIM

CAMP 584/2021

[2022] HKCA 1846

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 584 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1470 OF 2018)

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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.  On 30 April 2021, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), 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.

2.  The applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance on 3 August 2021 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 15 December 2021.

3.  On 23 December 2021, the applicant filed a summons in CAMP 584/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 23 December 2021, the applicant lodged his written submissions on 6 January 2022.

5.  Under Order 59 r.14A(1) RHC, 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.

Background

6.  The applicant is a national of India. He last arrived in Hong Kong on 15 September 2014, when he was refused entry by the Immigration Department, he raised a non-refoulement claim alleging that if refouled, he would be harmed or killed by certain local supporters of the rival political party Shiromani Akali Dal (“SAD”) as he was a supporter of the political party Indian National Congress (“INC”). The factual background of this case was succinctly summarised by the Judge at [2] – [5] of the JR Decision ([2021] HKCFI 1199).

7.  By a Notice of Decision dated 20 November 2014, the Director of Immigration (“the Director”) had decided against the applicant’s claim (“the Director’s 1^st Decision”). The Director’s decision covered the BOR 3 risk[1], torture risk[2] and the persecution risk[3].

8.  The applicant appealed the Director’s 1^st Decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”). The applicant attended an oral hearing on 21 September 2015. By its decision dated 2 October 2015 (“the Board’s 1^st Decision”), the Board dismissed the appeal. At the hearing, the applicant said he was not prepared to answer any question posed by the Board. For the reasons set out at [43] to [63], the Board rejected the applicant’s story. It rejected the applicant’s case that he was kidnapped and ill-treated by Satpal the Sarpanch (head of the village), as there was no objective and reliable evidence in support. Further, relevant country of origin information (“COI”) did not support the applicant’s claim that Satpal was the elected head of his home village during the material time. There is COI to suggest that there is reasonable state protection upon his return. For the aforesaid reasons, his non-refoulement claim under the grounds of BOR 3 risk, torture risk and persecution risk was rejected.

9.  On 4 January 2017 the Director on his own initiative invited the applicant to submit any additional facts which may be relevant to his non-refoulement claim on the BOR 2 risk[4]. However, the applicant did not respond. By a Notice of Further Decision dated 24 January 2017, the applicant’s claim on BOR 2 risk was rejected (“the Director’s BOR 2 Decision”).

10.  The applicant appealed to the Board against the Director’s Further Decision, but he was late by a little over 2 months in the filing of his notice of appeal. By the Board’s decision made on 18 July 2018 (“the Board’s 2^nd Decision”), it refused the applicant’s late filing of his appeal as his delay was serious, and he had failed to provide any good reason for the delay. As such, there were no special circumstances that would make it unjust not to allow the late filing of the applicant’s notice of appeal against the Director’s BOR 2 Decision.

Application for leave to start judicial review

11.  On 26 July 2018, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s 2^nd Decision, but no ground for seeking relief was given. In his supporting affirmation of the same date, he merely attached a copy of the decision without putting forward any proper ground for his intended challenge.

The JR Decision

12.  The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of the Board’s decision, the Judge refused leave for judicial review for reasons set out in [16] - [19] of the JR Decision:

“16. In the Board’s decision the Adjudicator took the widest approach in dealing with the Applicant’s late filing of his notice of appeal, and upon carefully examined her analysis and reasoning in §§18-24 of the decision, I do not find any error as to law or fact in her decision to refuse the late filing.

17. I am of course mindful of the decision of the Court of Appeal in Re Qasim [2019] HKCA 430, 8 April 2019 which held that the Board should take account the merits of the appeal to decide whether there are special circumstances that may make it unjust not to allow the late filing, of which the Adjudicator did not appear to have done so in the decision, but in his notice of appeal, the Applicant merely repeated his same claim of fear of harm from Satpal as the ground of his appeal, of which the Adjudicator had, as noted above, already in the Board’s first decision properly dealt with and rejected, correctly in my judgment, has never sought to challenge by way of judicial review essentially on the adverse finding as to his credibility for the reasons set out in that decision together with the availability of state protection upon his return to India that his claim was found to have failed on those applicable grounds, and of which the Applicant has never sought to challenge by way of judicial review.

18. Accordingly, and given the fact that he also failed to respond to the Director’s subsequent invitation to submit any additional facts which may be relevant to his claim under BOR 2 Risk, and that even on the basis of his own case, there is simply no scope for finding in his favour on BOR 2 Risk when his claim under all the other applicable grounds had been duly rejected.

19. In the premises and having also considered the earlier decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or irrationality or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Application for extension of time to appeal the JR Decision

13.  As mentioned earlier, the applicant failed to file a notice of appeal within time. He filed a summons in the Court of First Instance on 3 August 2021 for an extension of time to appeal. That was dismissed by the Judge on 15 December 2021. Hence, the Summons to this court.

Discussion

14.  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 (although the lack of prejudice does not mean an extension will be granted).

15.  As for (1), the applicant was late by more than 11 weeks between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance. His delay was substantial.

16.  As for (2), the reasons for the delay, the applicant alleged that he did not receive the JR Decision in time, without providing any further details or documentary evidence in support of his assertion. Further, the court file showed that JR Decision was sent to his last reported address on 30 April 2021 (the same day the JR Decision was handed down) and there was no return of mail. There is no good reason for his delay.

17.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant did not provide any proper or valid proposed grounds of appeal in the Summons and supporting affirmation filed in this Court.

18.  In his written submissions, he said that the current government of his home country is his enemy and the government would send police and political workers to kill him. As his case was rejected by the Director, the Board and the Court of First Instance, he urged this Court to save his life.

19.  The applicant had failed to pinpoint any error of the JR Decision or any proper grounds of appeal for us to reverse the JR Decision.

20.  The Judge was well aware, as was pointed out in [17] of the JR Decision, that the Board should have also considered the merit of the appeal in order to decide whether there are special circumstances that may make it unjust not to allow late filing.

21.  The Judge then reviewed the Board’s 1^st Decision and found that the Board had properly dealt the applicant’s claimed fear and had correctly rejected his claim on the torture risk, BOR 3 risk and persecution risk. As the applicant did not add any new evidence on BOR 2 risk, the Judge found that there was simply no scope for finding in the applicant’s favour on BOR 2 risk when his claim under all the other applicable grounds had been duly rejected.

22.  On the basis of the findings in the Board’s 1^st Decision, we agree with the Judge that the applicant’s claim on BOR 2 risk could not in any event be established.

23.  We are satisfied that the Judge had reviewed the Board’s Decisions with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

24.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 23 December 2021.