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

CAMP 410/2022

[2023] HKCA 364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 410 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 430 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 29 March 2022, Campbell-Moffat J refused the applicant’s application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 29 August 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show that he has any reasonable prospect of success in his intended appeal[2].

3.  On 5 October 2022, the applicant filed the present summons with the Court of Appeal to appeal against the decision of the judge dated 29 August 2022. In light of the decision Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 29 March 2022.

4.  The applicant is a national of India. He is 35 years old. On 14 July 2015, the applicant entered Hong Kong as a visitor but was refused permission to land. He then raised a non-refoulement claim by way of written representation on the same day on the basis that he would be killed or harmed by one Ashok Kumar and/or his associates as Mr Kumar’s daughter, Katrena, had eloped with the applicant’s friend, Raj.

5.  By a Notice of Decision dated 5 October 2015, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5] (“Director’s Decision”).

6.  By a Notice of Further Decision dated 16 February 2017, the Director found that the applicant’s claim did not engage BOR 2 risk[6] upon receiving no response from the applicant to provide additional information (“Director’s Further Decision”).

7.  The applicant appealed against the Director’s Decision and attended the hearing before the Board on 2 December 2015. The Board found there was no reliable evidence to substantiate his claim, such as the alleged injuries he sustained by Mr Kumar’s associates. It further held that Mr Kumar was not a public official nor was he acting in any official capacity. The applicant’s unawareness of the current situation of Katrena and Raj also further undermined his case. In light of its findings, the Board was of the view that the applicant’s claim for non-refoulement protection was not established and therefore dismissed the appeal on 22 December 2015.

8.  As for the appeal against the Director’s Further Decision, the applicant was late by 23 days and pursuant to section 37ZT of the Immigration Ordinance Cap. 115, the Board considered whether the late filing of the applicant’s appeal should be allowed as a preliminary issue without a hearing. The applicant did not adduce documentary evidence and upon considering the relevant authorities, the Board rejected the applicant’s late filing of appeal on 24 January 2019.

The judge’s decision

9.  On 15 February 2019, the applicant applied for leave to apply for judicial review against the decision made by “the Immigration Department” on 24 January 2019. Presumably, the applicant meant the decision of the Board dated 24 January 2019. There were no grounds in support provided for seeking relief in his application or in his supporting affirmation. As the applicant did not request for an oral hearing, the judge dealt with the application on paper.

10.  The judge found there was no error of law or procedural unfairness in the decision of the Board. The judge further held the Board had applied an appropriate high standard of fairness through the adjudicating process. As it was concluded there is no reasonably arguable basis in the applicant’s intended challenge, the leave application for judicial review was dismissed on 29 March 2022.

Grounds of intended appeal

11.  The applicant did not provide any grounds of appeal in his summons. In his supporting affirmation, he made various complaints, which may be summarised as follows:

(1)  He did not receive court documents in the post;

(2)  He was not provided legal representation throughout these proceedings; and

(3)  He has limited English abilities.

12.  As for his written submissions, the applicant basically repeated what was stated in his supporting affirmation.

Analysis and disposition

13.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 29 March 2022. The applicant took out a summons in the court below on 16 May 2022. He was late for over a month[7]. This is substantial and no explanation was provided by the applicant.

15.  As the applicant’s delay is inexcusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

16.  In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.  In the present application, the applicant has raised new issues for the first time in his supporting affirmation and written submissions. These new grounds would not be entertained by the Court of Appeal as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[8].

19.  In any event, the applicant’s contention that he has not been provided legal representation throughout these proceedings has no merit. It has been repeatedly stressed by the Court of Appeal that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceeding (Re Paswan Shibu Lal [2018] HKCA 249 at §21). Furthermore, interpreter services were provided at hearings at every stage in these proceedings. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire (Re Gurung Sagar [2019] HKCA 658 at §12).

20.  As for the applicant’s contention that he was unable to receive Court documents, the address of posting was provided by the applicant himself in the Court documents filed, such as the affirmations and summonses. While documents sent to the applicant were returned to the Court as undelivered by the post office, the Court of Appeal has repeatedly stated that the consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

21.  The applicant has clearly failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

22.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 29 March 2022 and dismiss the summons filed on 5 October 2022.