KARUN KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 261/2021

[2022] HKCA 562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 261 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1779 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  This is an application by the applicant for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  dated 7 July 2020[1] refusing to grant leave for judicial review of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”)  dated 15 February 2017 which rejected the applicant’s late appeal against the Director of Immigration’s (“Director”)  decision dated 31 March 2017 whereby the Director assessed and rejected the applicant’s non-refoulement claim with regard to BOR 2 risk.[2]

2.  The applicant is an Indian national born in 1967.  He arrived in Hong Kong on 3 April 2008 but did not leave when the permission for him to remain here expired on 30 April 2008. On 29 October 2008 the applicant made a torture claim by written signification, which was subsequently treated as a claim for non-refoulement protection in Hong Kong.  The applicant claimed that if returned to India, he would be killed by members of the Akali Dal Party (“ADP”)  because he was an active member of the Indian Congress Party and he had political disputes with the ADP members.  The details of his claim are set out in §§5-6 of the Director’s decision dated 16 January 2015 and §§6-12 of the Board’s decision dated 15 February 2017.

3.  The applicant’s claim was first assessed by the Director with respect to torture risk,[3] persecution risk,[4] and BOR 3 risk,[5] and rejected in the Director’s notice of decision dated 16 January 2015.  His appeal to the Board against that decision was dismissed, after a hearing attended by the applicant on 10 June 2016, in the Board’s decision dated 15 February 2017.  In essence, the Board found no evidence that the applicant had been attacked by ADP members and found that even if the attackers in the incident mentioned by the applicant were ADP people, his injury was not serious and did not reach the requisite level of severity for his non-refoulement claim.  The Board found no evidence that the applicant was a target of the ADP or that ADP people were still looking for him.  The Board further found that reasonable state protection was available to the applicant in India, and that even if there was risk of harm, it was a localised one confined to the vicinity of his area.

4.  After the Board’s first decision, by a letter dated 28 February 2017 from the Director, the applicant was invited to submit additional facts relevant to his claim based on BOR 2 risk, but he did not provide any additional material or information.  By a notice of further decision dated 31 March 2017, the Director assessed and rejected the applicant’s claim with regard to BOR 2 risk.

5.  Section 37ZA of the Immigration Ordinance (Cap 115)  provides that a claimant must provide to the Director (and, on an appeal, to the Board)  his residential address in Hong Kong and his correspondence address in Hong Kong, if different, and must notify the Director (and, on an appeal, the Board)  in writing of any change in his address as soon as practicable after the change.

6.  Section 37ZV(1)  provides that a notice to be given to a claimant may be given to him by being sent by post addressed to him at the last known residential or correspondence address provided by him under section 37ZA.  Section 37ZV(3)  provides that a notice sent by post is presumed, in the absence of evidence to the contrary, to have been given and received on the second working day after it was sent.

7.  In this case, a copy of the notice of further decision was sent by post to the applicant at his then last updated address known to the Director, namely, Strawberry Guest House, Block D, 12/F, Flat D-7, Chung King Mansion, Tsim Sha Tsui.  The letter was not returned to the Director undelivered.

8.  As 31 March 2017 was a Friday, the notice posted to the applicant on that day would be presumed, rebuttably, to have been given to him on Monday, 3 April 2017.

9.  Section 37ZS provides that a person who wishes to appeal against a decision rejecting his claim must file with the Board a notice of appeal within 14 days after notice of the decision is given to him unless late filing of the notice is allowed by the Board under section 37ZT(3).

10.  Prima facie, the deadline for the applicant to file a notice of appeal with the Board against the Director’s further decision was, therefore, 18 April 2017 (17 April being a public holiday).  The applicant did not appeal within that time but filed a notice of appeal on 19 June 2017.  In the notice, the applicant stated “because I no receive my letter and receive on 9 June”.

11.  As at the relevant time in 2017, section 37ZT provided:[6]

“ 37ZT. Late filing of notice of appeal

(1)  If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a)  must include a statement of the reasons for failing to file the notice within that period; and

(b)  must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(2)  The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a)  the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b)  any other relevant matters of fact within the knowledge of the Board.

(3)  If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

   (4)  If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.”

12.  In its decision dated 23 August 2018, the Board treated the case as one of late filing of the notice of appeal and considered the question whether it should exercise its power under section 37ZT(3)  to allow late filing.  It stated:

“ 4. In the Notice the Appellant stated that ‘because I no receive my letter and receive on 9 June’. The Appellant did not provide the reason why he did not receive the letter and did not provide with any document in support of his statement. Even if I accepted that he received the Notice of Further Decision on the 9^th of June, the Appellant filed the Notice on 19^th of June which is ten days afterwards. He did not provide any explanation for why he needed ten days for filing of the Notice.

5.  Having considered these circumstances, I am not satisfied that by reason of special circumstance, it would be unjust not to allow the Appellant’s late filing of the Notice I therefore not allow his late filing of the Notice.”

13.  Accordingly, no appeal against the Director’s second decision actually proceeded.

14.  The applicant apparently did receive the Board’s decision which was sent by post to his address.  On 29 August 2018, he filed a Form 86 in the Court of First Instance to seek leave to apply for judicial review of the Board’s decision of 23 August 2018.  In his supporting affirmation, the applicant simply stated that he was not satisfied with the decision and wanted to appeal his case to a higher authority.

15.  On 1 November 2019, the Judge held a hearing of the application, attended by the applicant.  On 7 July 2020, the Judge gave his decision refusing leave to apply for judicial review.  His reasons were set out in the Form CALL-1 as follows:[7]

“ DISCUSSION

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

16. The Court of Appeal in Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018)  at §42 held that the Board’s decision is final, subject to judicial review by the court. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to the case.

17. Therefore, the applicant has shown no valid reason against the Board’s Decision.

18. As to the Board’s Further Decision, the Board had not observed the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 Lisa Wong J, where it held:

‘  Where a notice of appeal is filed out of time, s. 37ZT(2)  mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay. [17]

   Where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application. [18]

It was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor. [20]’

19. The Board did not consider or evaluate all the circumstances of the case with a view to dealing justly with the application. To say that there were no other circumstances of the case would ignore the fact that the Board had considered the facts of the case in relation to other risks. It was incumbent upon it to take the facts of the case into consideration for the assessment of the BOR 2 risk.

20. The question remains whether such procedural irregularity would render the Board’s Further Decision subject to judicial review, bearing in mind the principle held in the Court of Final Appeal in Peter Po Fun Chan (2007)  10 HKCFAR 676 §14 that the test for whether leave should be granted to the applicant to have judicial review of the authorities’ decision was whether the applicant could show that he had a reasonable prospect of success in his intended judicial review. Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges.

21. The applicant had given no further information to the Director in relation to BOR 2 risk. Putting his case at the highest, relying upon the facts found by the Director and the Board in relation to the other risks, the applicant obviously has no ground in support of his claim under BOR 2 risk. Such conclusion is so clear that it is unnecessary to make any further finding of facts or clarification of the facts found.

22.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

16.  Under Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), the applicant had 14 days after the Judge’s order to appeal.  He did not file a notice of appeal within that time (i.e. by 21 July 2020), but instead filed a summons on 10 August 2020 seeking an extension of time to appeal.  In a document entitled “Grounds on which relief is sought” exhibited to his affirmation accompanying the summons, the applicant stated that he did not get the court’s letter enclosing the decision in time but only received it on 6 August 2020.

17.  On 8 July 2021, the Judge, based on the written materials, gave his decision on the applicant’s summons, refusing to extend time because the applicant was unable to show any reasonable prospect of success in the intended appeal.[8]

18.  By summons in this Court dated 19 July 2021, the applicant has renewed his application for extension of time to appeal.  In his accompanying affirmation of the same date, the applicant said he did not agree with the Judge’s decision of 8 July 2021.  He stated he was a genuine non-refoulement claimant facing dangerous problems and harassment in India, and that his enemies were still looking for him and his problems were getting worse.

19.  In his written submissions dated 2 August 2021, the applicant stated that he failed to appeal because he did not get the court’s letter in time.  The Judge had not analysed his claims properly and did not apply the correct principles and standards of fairness in reviewing the Board’s decision.  The Board had failed to give him a sufficient chance to arrange for relevant evidence for his claims.  He will face hardship if he is to return to India.  The Board had relied on sources of news which were not officially recognised or were simply hearsay.

20.  Having considered the available materials, we find it appropriate pursuant to Order 59 rule 14A of the Rules of the High Court (Cap 4A)  to deal with the present application on the papers without an oral hearing.

21.  Pursuant to Order 53 rule 3(4)  of the Rules of the High Court, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless an extension of time is granted.  In considering whether to extend time, the court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3)  the intended appeal’s prospect of success; and (4)  the prejudice to the respondent if an extension of time were granted.

22.  Given that the applicant was late by 10 days in taking steps to appeal (excluding the days in August 2020 which was the court vacation), which was not a very lengthy delay, we shall concentrate on the merits of the intended appeal.

23.  In assessing the merits of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

24.  In the present case, given that notice of the further decision was presumed by law to have been given to the applicant on 3 April 2017, the Board was entitled to proceed on the basis that the applicant had failed to rebut the presumption by merely making a bald statement that he received it on 9 June 2017.  The Board was therefore entitled to proceed on the basis that the notice of appeal was filed late.  The Board had to consider, as a preliminary question under section 37ZT, whether to allow the late filing.  The Judge found that the Board had erred in failing to consider the merits of the claim before deciding to reject the late filing of the notice of appeal (which, as held in Re Khan Kamal Ahmed [2019] HKCA 377, needed to be considered under section 37ZT before its amendment by the Immigration (Amendment)  Ordinance 2021), but the Judge considered that the applicant’s intended judicial review nevertheless had no reasonable prospects of success.

25.  It is trite that judicial review is a discretionary remedy.  The court does not act in vain.  The Judge considered that since the applicant adduced no additional information in relation to the BOR 2 risk, his claim was bound to be rejected in relation to BOR 2 risk just as it had been rejected in relation to the other three risks by the Director and the Board.  The applicant did not apply for judicial review of the decision in relation to the other three risks.  There was no prospect of overturning the Director’s further decision on BOR 2 risk.  The applicant did not suffer any prejudice from the Board’s failure to consider the merits in deciding to reject his late filing of the notice of appeal.  On this basis the Judge was entitled to refuse leave for judicial review, even though the Board apparently took an approach which was deficient in law.

26.  The applicant has failed to pinpoint any error in the Judge’s reasoning.  The decision seems to us to be entirely within the discretion of the Judge.  The applicant’s written submissions for the present application fail to demonstrate any ground for vitiating the Judge’s exercise of discretion. The allegation that the Board failed to give him a sufficient chance to arrange for relevant evidence for his claims is unsubstantiated; the applicant did not submit any further information in relation to BOR 2 risk when invited by the Director to do so.  The complaint that the Board had relied on unofficial sources of news or hearsay seems wholly unconnected to the subject matter of the intended judicial review application, i.e. Board’s decision of 23 August 2018.

27.  For these reasons, we do not see any reasonable prospect of success in his intended appeal.  The application for extension of time is accordingly dismissed.