RE BAHADUR

CACV 479/2020

[2021] HKCA 825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 479 OF 2020

(ON APPEAL FROM HCAL NO. 243 OF 2018)

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J U D G M E N T

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1  The applicant is a national of the India.  On 22 March 2014 he raised a claim with the Immigration Department of his intention to seek non-refoulement protection.

2.2  On 1 September 2016, non-refoulement claim form was served on the applicant at the Castle Peak Bay Immigration Centre.  He was informed to return the completed claim form to the Director on or before 29 September 2016, failing which his non-refoulement claim would be deemed withdrawn under section 37ZG(1) of the Immigration Ordinance (Cap. 115) (‘the Ordinance’), unless an extension is granted before the expiry of the deadline.

2.3  On 9 September 2016, the applicant was released from the Castle Peak Bay Immigration Centre.  On 4 October 2016, since there was no return of any completed claim form by the deadline, the Immigration Department informed the applicant by letter that his claim was deemed withdrawn unless there was evidence to show circumstances beyond his control.

2.4  On 24 February 2017, months after the Immigration Department had informed the applicant that his claim was withdrawn, the applicant made written submissions by return and stated that he left his claim form at the Immigration Centre when he was released, and that he did not know where to obtain another blank form to fill in the information, so he did not return a completed claim form.  There was no explanation why the applicant did not contact the Immigration Department.  There was no explanation why the applicant did not contact the Duty Lawyer Scheme which was provided to him.  There was no explanation why no time extension application was taken out.

3)  The Director’s Decision

3.1  The Director of Immigration (‘the Director’) upon assessment of the applicant’s evidence was not satisfied that the applicant had provided sufficient evidence in writing to show circumstances beyond his control under section 37ZG(3) of the Ordinance for the case to be re‑opened.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).

4.2  The Board declined the applicant’s application to re‑open his case.  The Board held that between the date of the applicant’s release and the stipulated deadline to file claim form, there was ample time and opportunity for the applicant to obtain another blank form from the Immigration Department.  The applicant did not apply to re‑open his claim when it was deemed withdrawn in September 2016, but he only did so when he was detained again in February 2017.  The applicant was unable to show circumstances beyond his control under section 37G of the Ordinance.

5)  Decision of the Judge

5.1  The applicant was late in filing his Form 86 application for leave to apply for judicial review.  No grounds of review were provided in his Form 86.  In his supporting affirmation, he merely stated he was not satisfied with the decisions of the Director and the Board.  He stated that he feared for his life without particulars provided.

5.2  On 30 June 2020, the Judge held that he was unable to see justification for the applicant’s delay in making an application for leave for judicial review.  The Judge agreed with the Board’s decision.  The applicant’s fear that he would be arrested again if he went back to the Immigration Department to obtain a blank claim form was unacceptable. The applicant’s argument that he had no money to travel to retrieve a blank claim form was equally unacceptable.   

6)  Grounds of appeal

6.1  In the applicant’s notice of appeal, he stated that the Judge disregarded his dangerous situation.

6.2  Doing the best that we could read from the applicant’s written submissions, the applicant stated that he did not understand the non-refoulement claim procedures.  He stated that the Board’s decision included country of origin information without understanding India’s culture.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

7.2  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

7.3  The Board made no mention of country of origin information.  Ignorance of non-refoulement claim procedures is no excuse.

7.4  We see no basis to disturb the Deputy Judge’s Decision.  Accordingly, the appeal is dismissed.