RE MAMSA TARIQUE

CAMP 202/2020

[2022] HKCA 371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 202 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 711 OF 2017)

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J U D G M E N T

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

1.  On 29 June 2018, Campbell-Moffat J (“the Judge”) refused to give the applicant leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 13 July 2018.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 30 December 2019 for extension of time to appeal (which was late by more than 17 months).  That summons was dismissed by the Judge on 8 October 2020. 

3.  On 30 October 2020, the applicant filed his summons in CAMP 202/2020 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  In compliance with the directions made by the Registrar of Civil Appeals on 28 December 2020, the applicant filed his written submissions on 6 January 2021.

Background

5.  The brief background according to the applicant is as follows.  The applicant is an Indian national and a Sunni Muslim.  He was educated up to primary 5 and worked as a chef from 1998 to 2003, and thereafter ran a wholesale garment and mobile phone business until 2008.  In January 2005, the applicant met a Hindu girl (“Mannu”) who was from a higher caste and started a relationship with her.  Mannu’s father was a member of the Congress political party and her brothers were members of the underworld and affiliated with powerful people.  When Mannu’s family found out their relationship in January 2006, Mannu’s brothers slapped the applicant and threatened to kill him if he saw Mannu again.  The relationship however continued until 2007, when Mannu’s family stopped him in the street and beat him up.  He did not sustain any serious injury in the two incidents and did not report the matters to the police.  Thereafter the applicant was beaten up again in May 2008 and his home was vandalised in July 2008. 

6.  Worried for his safety, the applicant departed India on 14 July 2008.  He came to Hong Kong as a visitor on 15 July 2008 and was allowed to stay until 29 July 2008.  He overstayed and was arrested by the police on 15 July 2009.  On 18 July 2009, he raised a non-refoulement claim on the basis that if he were to return to India, he would be harmed or even killed by Mannu’s father and brothers as they disapproved of the relationship.  His relationship with Mannu came to end in 2010 when he married his Indonesian wife in Hong Kong. 

7.  By a Notice of Decision dated 22 September 2014 and Notice of Further Decision dated 5 May 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  An oral hearing was dispensed with.   By its decision dated 16 August 2017, the Board dismissed the appeal and confirmed the Director’s decisions.  The Board took the view that the applicant’s concern over the influence of Mannu family was exaggerated and in the entire course of events, there was no evidence to show Mannu’s family had enlisted the help of any public officer.  The applicant’s belief that he would not receive state protection was premature and without basis.[5] In any event, internal relocation is a reasonable and viable option.[6]  To conclude, the Board found that the applicant’s contemplated risk of harm from the Mannu family falls outside any risk of torture or harm under all applicable grounds and the claim was accordingly dismissed by the Board.   

Application for leave to start judicial review

9.  On 3 October 2017, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s decision. In his supporting affirmation, he only said he applied for “judicial review of the decision made by the Director of Immigration for refusal of my Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office”.  He did not provide any further grounds of review.

The JR Decision

10.  The applicant did not request for an oral hearing and the application was disposed of on paper.  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 leave to apply for judicial review for reasons set out in [12] - [13] of the JR Decision:

“12.  Despite the fact that there were no grounds of review, I have considered the papers, grounds and submissions 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.  The Director and Adjudicator considered all relevant criteria, The Applicant was given a reasonable opportunity to state his case before the Director, which could not have been improved upon before the Adjudicator given its very narrow confines.  They both enquired into that case appropriately. There is no criticism of their determinations nor the procedure adopted, 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.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal from the JR Decision.  He filed a summons in the Court of First Instance on 30 December 2019 for extension of time to appeal.  That was dismissed by the Judge on 8 October 2020.  Hence, the summons to this court. 

Discussion

12.  In considering whether to extend time for appealing, the Court 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 (although the lack of prejudice does not mean that an extension will be granted).  As for (1), the applicant was late by more than 17 months between the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.

13.  As for (2), the reasons for the delay, the applicant alleged that he was not aware of the 14-day time limit[7] and did not receive the court order and the JR decision until December 2019[8].  Upon checking the correspondence records in the court file, the Judge had found that delay was due to the applicant’s failure to inform the court of his updated address.  We note that the lower court had taken the proactive step to obtain his updated address from the Immigration Department and sent the court documents to him again in or about 18 July 2018 (without the mail being returned). Nevertheless, the applicant still alleged that he did not receive the JR Decision until December 2019. 

14.  In the summons and supporting affirmation filed in this Court, the applicant only requested us to accept his late application and gave a general excuse that he was late due to “lack of knowledge and insufficient sources”.  We see no satisfactory explanation for the substantial delay at all.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant failed to provide any ground of review in his Form 86 and his supporting affirmation, and the Judge found no realistic prospect of success in his intended appeal and thus had rightly refused leave. 

16.  In his summons and supporting affirmation for extension of time for the present application, he again failed to provide any proper grounds to reverse the JR Decision. 

17.  In his supporting affirmation, he said “the decision made by the High Court has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. I would like to appeal out of time as I didn’t had neither the appropriate means nor I received the decision on time.”  As mentioned earlier, the applicant did not provide any grounds for his intended challenge, nor did he request for an oral hearing in his Form 86.  We see no merit in those complaints.

18.  His written submissions for the present application only cited some cases and legal provisions as well as some general legal principles in relation to torture claims, without any elaboration or explanation as to how those cases and principles applied or would assist his case.

19.  Further, in any event it is clear from the Board’s decision that even on the basis of the applicant’s case, he failed to establish that the harm suffered in the incidents had attained the required level of severity that would qualify him for non-refoulement under any of the applicable grounds.  It was perfectly open to the Board to reach its findings and conclusion, and the judge rightly found no error of law or procedural unfairness or irregularity in the Board’s decision.

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 30 October 2020.