RE PANCHANATHAN RAMU

CAMP 6/2020

[2020] HKCA 394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 6 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 793 of 2017)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  The applicant issued the summons on 9 January 2020 to apply for leave to appeal against the decision of Compbell-Moffat J (“the Judge”) given on 12 December 2018[1]. By that decision, the Judge refused to grant the applicant leave to appeal out of time against her decision of 14 September 2018[2] refusing him leave to apply for judicial review. The correct procedure is not to appeal against the decision of 12 December 2018, but to make a further application for leave to appeal to this Court. Given that the applicant is unrepresented, we will take his summons as a renewed application for leave to appeal out of time against the Judge’s refusal of leave to apply for judicial review of 14 September 2018.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of his present application.

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

4.  The applicant’s intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 23 May 2016 and 8 May 2017 rejecting his non-refoulement claim and the Torture Claims Appeal Board (“the Board”) dated 27 September 2017 dismissing his appeal against the Director’s decision.

5.  The applicant is an Indian national.  He entered Hong Kong on 29 December 2013 and was given permission to remain as a visitor until 12 January 2014.  The applicant overstayed and surrendered to the police on 15 January 2014.  On 17 January 2014, the applicant raised a non-refoulement claim, which was set out in details in the Director’s first decision at [6] and summarised by the Judge in the Form CALL-1 dated 14 September 2018 at [4] and [5]. 

6.  In gist, the applicant feared he would be harmed or killed by members of the All India Anna Dravida Munnetra Kazhagam (“AIADMK”) because of a political dispute in April 2013 involving him and his political party, Dravida Munnetra Kazhagam (“DMK”), and members of AIADMK.  The applicant claimed that afterwards he was assaulted and threatened by people associated with AIADMK, as a result of which he moved to different parts of the country and eventually decided to flee to Hong Kong.           

7.  By two decisions of 23 May 2016 and 8 May 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[3], BOR 3 risk[4] and persecution risk[5] grounds; and the second decision covered the BOR 2 risk[6] ground.

8.  The applicant’s appeal to the Board was heard on 19 July 2017.  By its decision dated 27 September 2017, the Board dismissed the appeal.  Primarily, the Board found the applicant was “a low-level DMK supporter who experienced one incident of a minor scuffle in April 2013 in the context of local party political squabbling” (at [36]).  The Board rejected the applicant’s claim that AIADMK’s people were looking for him.  The Board found no real risk of the applicant experiencing any of the types of harm that would entitle him to non-refoulement protection.  

9.  On 20 October 2017, the applicant filed a Form 86 together with a supporting affirmation.  No ground for seeking relief was set out in the documents.  He did not request an oral hearing.

10.  Upon a consideration of the papers, the Judge dismissed the application.  Her reasons were set out in [11] to [13] of the Form CALL-1 as follows:

“Grounds of review

11. 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

12. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully. 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 the 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.

13. 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.”

11.  The 14-day period for the applicant to appeal the decision of the Judge, as stipulated by Order 53, rule 3(4) of the Rules of the High Court, expired on 28 September 2018.  On 23 October 2018, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The Judge heard the application on 12 December 2018, and dismissed it at the conclusion of the hearing.  

12.  Under Order 59 rule 2B(3) of the Rules of the High Court, the applicant may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of the refusal of leave by the Judge.  It was, however, more than a year later on 9 January 2020 that the applicant filed the present summons to apply to this Court for leave to appeal out of time.  Under Order 59 rule 2B(6) of the Rules of the High Court, this Court may extend the time for making the application for leave to appeal.

13.  In considering whether to extend the time for making an application for leave to appeal, the Court generally 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. 

14.  The applicant was late by more than one year, which is a very serious delay.  In the affirmation dated 9 January 2020, the applicant explained that he did not receive any letter or judgment from the Court.  He also said he did not know the procedure and did not know the language.

15.  We do not find the applicant’s explanation satisfactory.  The Judge dismissed the application in the presence of the applicant at the hearing on 12 December 2018.  The applicant did not need the Judge’s written judgment or any communication from the court to know that his application had been dismissed.  We accept that the applicant was not legally represented and would be unfamiliar with court procedures, but if he were minded to take his case further it would be incumbent upon him to take steps to find out the required procedures and applicable time limit, including making enquiries with the court.  It does not appear from the applicant’s affirmation that he had done anything.  In our view, the applicant’s delay is both inordinate and inexcusable. 

16.  For the reasons set out below, we are further of the view that the applicant’s intended appeal has no prospect of success.  The applicant did not put forward any ground for seeking relief in his application for leave to apply for judicial review.  Despite that, the Judge undertook an examination of the decisions of the Director and the Board and concluded there was no ground for judicial review. 

17.  In the present application, the applicant did not provide any proposed ground for his intended appeal against the Judge’s decision in the summons or supporting affirmation.  It was only in the written submission dated 11 March 2020 that the applicant, for the first time, raised criticisms against the Director, the Board and the Judge.  Specifically, the applicant complained that:

(1)  The Judge never heard him in person.

(2)  He was not provided with legal representation in the BOR 2 risk assessment.

(3)  The Director’s further decision on the BOR 2 risk assessment was made without ensuring that he was aware of his rights and the relevant definitions. Due to lack of language and legal assistance, he did not understand the process and the reasons leading to the rejection of his claim.

(4)  The authorities and the court have been negligent and failed to discharge the duty of care owed to a non-refoulement claimant like him, who is discriminated against and disadvantaged by not understanding the English language and the court procedures.   

(5)  The authorities have acted in a discriminatory manner towards non-refoulement claimant, and did not have regard to their handicap.

18.  In respect of the complaints against the Director and the Board, in the absence of any justification, it is not open to the applicant to raise these new grounds.  In any event, the applicant only made general assertions without providing any particulars.  It should further be noted that even if the applicant’s claim were to be believed, it would not have engaged the BOR 2 risk ground.

19.  In relation to the applicant’s complaints against the Judge, the first one is plainly not made out.  Under Order 53 rule 3(3) of the Rules of the High Court, the court may determine an application for leave to apply for judicial review without a hearing, unless a hearing is requested in the notice of application.  The applicant did not request for an oral hearing of his application for leave to apply for judicial review.  The Judge was entitled to adopt the usual practice of not holding an oral hearing and proceed to determine the application on the papers.  In respect of the subsequent application for extension of time to appeal, the Judge heard it in an oral hearing.

20.  As for the second complaint of discrimination and non-observance of a duty of care towards the applicant, it is a vague assertion with no particulars.  The basis for suggesting that the court owed the applicant a duty of care is also not made out.     

21.  In conclusion, having regard to the inordinate and inexcusable delay and the lack of merits in the intended appeal, it would be futile to extend the time for the applicant to make the application for leave to appeal.  Accordingly, we dismiss the applicant’s summons filed on 9 January 2020.

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