RE MASIH MAIKAL

CAMP 174/2018

[2019] HKCA 410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 174 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 757/2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 8 August 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 27 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 19 February 2016 and 7 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 28 July 2010 and was permitted to remain until 11 August 2010.  He was arrested by the police on 28 December 2012.  He lodged a non-refoulement claim on 30 December 2012. 

3.  The applicant’s claim was based on threats from members of an opposing political party, his uncle and some Sikhs.  The details of the applicant’s claim have been summarised by the judge at [3] to [6] and [11] – [13] of the CALL-1 Form.

4.  By a Notice of Decision dated 19 February 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 7 July 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 7 September 2017, the Board found that the applicant’s case was not credible ([44], [49] and [62] of the Board’s Decision) and dismissed the appeal on 27 September 2017.  The Board’s Decision covered all four grounds for non-refoulement protection.

The deputy judge’s decision

7.  The applicant filed a Form 86 on 11 October 2017 which contained the following grounds for judicial review, summarised below:

(i)   the Board unlawfully fettered its discretion in holding that the appeal did not satisfy the requirement;

(ii)   the Board acted in a procedurally unfair manner;

(iii)   the Board’s Decision was unreasonable or irrational, or a result of procedural errors or unfairness; and

(iv)   the Board failed to meet the greater care and duty owed to self-represented claimant.

8.  In the affirmation in support of the leave application dated 11 October 2017, the applicant advanced the following grounds for judicial review which are summarised below:

(i)   his lack of legal representation before the Board/miscarriage of justice;

(ii)   the lack of language assistance given to him during the appeal process; and

(iii)   insufficient reason given for rejection of BOR 2 risk by the Director.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [17] to [22] of the CALL-1 Form:

“17. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition. The applicant submits that for a high standard of fairness to be maintained he should have been provided with legal representation. The applicant was provided with Counsel through the duty lawyer scheme before both the Director and the TCAB.

18. He also complains that he should be provided with legal representation for his application for leave to apply for judicial review. The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”. As I have said above, he did not apply for legal aid and I refuse him an application to adjourn this hearing to make such an application.

19. In the applicant’s second ground, he complains the duty lawyer service refused to translate his “NCF” despite his request for it. Without it he cannot confirm whether or not the basis of his claim written in English is accurate which is why he asked for a translation. During the process, interviews and appeal, there does not seem to have been any reason to suspect his claim was not translated properly. I bear in mind that the applicant was legally represented before the Director and the TCAB. If there had been issues, the applicant would have been able to particularise details here in his affirmation. Moreover, this application and affirmation were in English made by this applicant with an apparent lack of language assistance from the Hong Kong government. The applicant’s second ground is also without merit.

20. The applicant’s third ground although it is a complaint against the Director when he has not proposed him as a respondent, I will still deal with it. He suggests no reasons were given for rejecting the BOR 2 risk claim. The notice clearly refers to the Director’s findings in his previous decision of 19 February 2016 and applies it to Article 2. He rejected the applicant’s BOR 2 risk claim in light of the assessment on the risk of his feared treatment as set out in that previous decision. In any event, it was never the applicant’s case that he was at risk of harm from capital punishment inflicted by the government or that he faced harm from his government that would put his life at risk. Even if this was an application that included the Director, this ground would have no merit.

21. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application, I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

10.  According to the court’s records, a copy of the CALL-1 Form and the sealed copy of the deputy judge’s order were sent to the applicant on 8 August 2018.

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 24 September 2018, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Bruno Chan on 20 November 2018.

12.  By a summons dated 23 November 2018, the applicant renewed his application for an extension of time to appeal before this court.  His application for extension of time is supported by an affirmation filed on the same day.  In his affirmation, he said that he asked his friends if there was a time limit for appeal to which they said there was none.  He also did not encounter any problem while reporting himself to the Immigration Centre.  He was under the erroneous assumption that there was no time limit for appealing against the judge’s decision.

13.  The applicant said that the high standard of fairness means that he should have been given legal representation for his claim based on BOR2 risk before the Director.  Lastly, he said that his “[a]pplication for leave to appeal out of time should not be refused on the basis of non-discriminatory act and court should exercise its discretion given the non excessive amount of time (recognized by Deputy Judge) as well as the language barrier and cultural differences.”

14.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 27 November 2018, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

16.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  Ignorance of the law on the part of the applicant is not a reasonable excuse for the delay.

17.  Nonetheless, as the delay was relatively short (about a month) we will consider the merits of the intended appeal.

18.  In his affirmation dated 23 November 2018, the applicant claimed that he should have been given legal representation for his BOR 2 risk claim.  This court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.  Nor has he suggested that there was any further material that he wished to advance for the purposes of the BOR 2 claim.

19.  For these reasons, we do not see any prospect of success in the intended appeal. We will not grant extension of time for a hopeless appeal.  The summons of 23 November 2018 is dismissed accordingly.

20.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.