RE SANDHU VINNY

CAMP 501/2022, [2023] HKCA 1261

on appeal from [2022] HKCFI 2327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 501 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 673/2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 13 October 2022 refusing to extend time for the applicant to appeal against his decision dated 8 August 2022 by which he refused to grant leave to the applicant 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 (“the Board”) dated 28 February 2019 (“the Board’s 2^nd Decision”) refusing the applicant’s application for late filing of a notice of appeal against the decision of the Director of Immigration (“the Director”) dated 22 February 2017 (“the Director’s 2^nd Decision”) rejecting the applicant’s non-refoulement claim based on the BOR 2 risk[1].

Background

2.  The applicant is a national of India. He arrived in Hong Kong on 30 July 2015 on the strength of his Indian passport, and upon being refused permission to land, he raised a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by a businessman named “Mr Goyal”.  The details of the applicant’s claim have been summarised by the Judge at [4] to [6] of his decision (“the CALL-1 Form”)[2].

4.  By a Notice of Decision dated 30 October 2015 (“the Director’s 1^st Decision”), the Director decided against the applicant’s claim based on the torture risk[3], the persecution risk[4] and the BOR 3 risk[5].

5.  The applicant appealed against the Director’s 1^st Decision to the Board.  After a hearing on 7 January 2016, the Board dismissed the appeal by its decision dated 26 January 2016 (“the Board’s 1^st Decision”).  By the Board’s 1^st Decision, the Board found, inter alia, that the material aspects of the applicant’s claims, including the allegation that he was the subject of persecution by a gangster named Mr Goyal, were implausible and incredible on the evidence.

6.  Thereafter, by a further decision dated 22 February 2017 (“the Director’s 2^nd Decision”), the Director decided against the applicant’s claim based on the BOR 2 risk.

7.  The applicant sought to appeal against the Director’s 2^nd Decision to the Board, but filed the relevant notice of appeal/petition (“NoA”) late on 4 July 2017, over 3 months out of time.  The Board out of time, after considering the applicant’s reasons for the delay, dismissed the applicant’s application to file the NoA out of time on 28 February 2019 (“the Board’s 2^nd Decision”).

The Judge’s decision

8.  The applicant filed a Form 86 on 11 March 2019 seeking to judicially review the Board’s 2^nd Decision, without setting out any grounds of review.  In his supporting affidavit, he claimed that his “dangerous situation” had been disregarded.

9.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave to the applicant to apply for judicial review against the Board’s 2^nd Decision.  The Judge gave the following reasons in refusing to grant leave at [17] to [27] of the CALL-1 Form:

“17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

19.  The issue for determination is whether the Board is correct in the Board’s Second Decision, which refused to extend time for the applicant to file his notice of appeal and further, even if the late filing of the notice of appeal were accepted, whether there is any realistic chance of success for the intended appeal.

20.  The Board had considered extensively the relevant authorities abroad and locally in relation to section 37ZT(2)(b) of the Ordinance, taking into consideration the length of delay, the explanations given by the applicant for the delay, case management of similar cases and found:

(1)  delay for 3 months and 24 days is both ‘serious and ‘significant’;

(2)  the explanations given by the applicant are not acceptable, bearing in mind that he had failed to inform the Director his new address;

(3)  if the delay is only a short period of time, the Board should evaluate all the circumstances of the case, so as to enable it to deal fairly and justly with the application to extend time; and

(4)  in all the circumstances, the late filing of the applicant’s notice of appeal can justly be rejected.

21.  This Court will not interfere with the above findings.

22.  However, the findings above have to be further considered in light of the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 dated 2 April 2019, which has widened the scope of the Board’s consideration to cover the merits of the applicant’s case, suitably demonstrated in the Director’s First Decision, which should be put before the Board. The Court of Appeal held that the Board has to consider the merits even if the applicant is absent or late for the filing of the appeal:

‘16. Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.

17.  Where a notice of appeal to 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.

20.  … 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.’

23.  The Board’s Second Decision is dated 28 February 2019, which is about one odd month before the above Court of Appeal’s judgment on 2 April 2019. This decision is, however, binding on the lower courts. The Board had affirmed the Director’s First Decision, which contains the facts of the case. It will not be difficult for the Board to determine the merits of the case for the appeal against the Director’s Second Decision. The Board has not stated that it had considered the Director’s First Decision before it declined to allow extension of time for the applicant to file his notice of appeal against the Director’s Second Decision. The applicant’s late filing of the notice of appeal was declined on technical ground.

24.  Since the granting of leave for applying for judicial review is a discretion, which the Court has to consider judiciously and should not grant leave if there is no realistic chance of success in his challenge the Board’s Decision even if leave is granted. [1] The Court will take into consideration of the following factors:

(1)  the facts of the applicant’s case had been determined by the Board and the applicant did not dispute them, therefore they become final;

(2)  the applicant has not raised additional information for his appeal on the BOR 2 risk issue;

(3)  on the facts as found by the Board, there is no ground that the applicant will succeed on his BOR 2 risk even if he was allowed to file his notice of appeal and his case considered by the Board.

25.  The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2002] HKCA 48, 7 January 2022, held:

‘59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].’

26.  Under the above circumstances, it is simply futile to grant leave to the applicant to apply for judicial review of the Board’s Decision.

CONCLUSION

27.  I decline to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

10.  The applicant’s address as stated in the Form 86 was at To Kwa Wan Road, To Kwa Wan.  On 12 July 2022, the applicant provided a new address to the court, at Hung Wan Street, To Kwa Wan (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 8 August 2022.  This letter was not returned undelivered.

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 8 August 2022.

12.  The applicant took out a summons in the Court of First Instance on 9 September 2022 seeking extension of time to appeal, in which his address was stated to be the Address.  In his supporting affirmation, he claimed that he received the CALL-1 Form “very late” and that he was disadvantaged by reason of his lack of legal representation.   

13.  The applicant’s application for leave to appeal out of time was dismissed by the Judge on 13 October 2022[6].

14.  By a summons filed on 29 November 2022, the applicant sought an extension of time to appeal against the decision given by the Judge on 13 October 2022, i.e. the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 8 August 2022.  Although by his summons the applicant purported to seek an extension of time to appeal against the decision of the Judge dated 13 October 2022, we shall treat the application as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 8 August 2022, by which leave for judicial review was refused.

15.  In his written submissions lodged on 13 December 2022, the applicant stated that he disagreed with the decisions made by the Director and the Board, and alleged that the processing of his claim was “procedurally unfair” by reason that he had not received “proper legal and language assistance”. 

16.  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.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

Discussion

17.  As noted above, the Judge’s decision dated 8 August 2022 was sent to the last known address of the applicant (which was at the time the Address) on the same day, and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and that he had knowledge of the Judge’s decision within the period in which he should have lodged his intended appeal.

18.  The applicant has failed to elaborate on when and how he became aware of the Judge’s decision. 

19.  We are accordingly of the view that the applicant has failed to proffer any reasonable explanation or reason for his delay in lodging his intended appeal. 

20.  Further, there was a delay of over 1 month in respect of his present renewed application for extension of time before this court.  The delay is not insignificant, and the application could therefore be dismissed on this basis alone.  However, we have nonetheless proceeded to consider the merits of the intended appeal.

21.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

22.  Section 37ZT(3) of the Immigration Ordinance (Cap 115) (“the Ordinance”) provides that the Board may allow the late filing of the NoA if the applicant provided sufficient evidence in writing to satisfy the Board that (i) he had exercised all due diligence to file the NoA within the prescribed time; and (ii) his failure to do so was due to circumstances beyond his control. 

23.  Nonetheless, regardless of procedural breaches committed by the applicant and the lack of explanation therefor, it is incumbent on the Board, in the exercise of its discretion to extend the time for appeal to it, to consider the merits of the applicant’s claim.  See Re Khan Kamal Ahmed [2019] HKCA 377 at [20]; Re Qasim Ali [2019] HKCA 430; Re Castillo Raquel Adona & anor [2022] HKCA 1053.

24.  We agree with the observation by the Judge (at [23] of the CALL-1 Form) that the applicant’s late filing of the NoA was refused on a “technical ground”.  In other words, it appears that the Board in reaching its 2^nd Decision (which concerned the applicant’s intended appeal against the Director’s 2^nd Decision, which was the rejection of his claim based on the BOR 2 risk) did not, as it should have, consider the merits of the applicant’s intended appeal.  However, for the following reasons, we are of the view that in the circumstances of this case, the Judge was nonetheless correct in refusing to grant the applicant leave to apply for judicial review against the Board’s 2^nd Decision.

25.  First, we reiterate that an appeal (or an intended appeal) against a refusal of leave to apply for judicial review is not the occasion for this court to examine the decision of the Board afresh.  This court is only concerned with the decision of the Judge at first instance, and will interfere with such decision only if the Judge erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Qasim Ali at [18].

26.  Re Qasim Ali was a case where the Board did not consider the merits of the applicant’s intended appeal, and in which this court (Yeung Acting CJHC and Lisa Wong J) held that it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious (see [25]).  However, the Director’s decision in that case in fact covered all four applicable grounds for non-refoulement protection (see [5]), and when the Board refused to allow the applicant in that case to file the notice of appeal against the Director’s decision out of time, it had neglected to consider the merits of the applicant’s non-refoulement claim under any of the applicable grounds.

27.  In another relevant decision of this court (Chu JA, as Chu VP then was, and B Chu J), namely Re Castillo Raquel Adona (in which Re Qasim Ali was cited at [23]), the applicants had altogether failed to return their completed non-refoulement claim forms (“NCF”) to the Director, which resulted in the Director treating their claims as withdrawn, and ultimately deciding that their claims should not be re-opened (see [5]-[8]).  The applicants filed their notice of appeal (against the Director’s decision not to re-open their claims) with the Board late, and leave to file out of time was likewise refused by the Board (see [9]-[12]).  There was also no dispute that the Board did not consider the merits of the applicants’ intended appeal (at [24]).  This court however held that although the Board had failed to consider the merits of the appeal pursuant to Re Qasim Ali and section 37ZT(3) of the Ordinance, had the Board undertaken this exercise, it would inevitably have concluded that the intended appeal had no merits by reason of the applicants’ failure to submit their completed NCF to the Director (see [21]-[24]).

28.  Returning to the present case, the applicant had duly submitted his NCF (see Director’s 1^st Decision at [6]) containing his version of events in support of his claims, albeit only pertaining to the BOR 3, the torture and the persecution risks.  The applicant, his appeal against the Director’s 1^st Decision having been dismissed by the Board’s 1^st Decision, does not seek to challenge the findings and conclusions in those decisions in these judicial review proceedings.

29.  Unlike the situation in Re Qasim Ali, by refusing to allow the applicant to file the NoA against the Board’s 2^nd Decision out of time, the Board in this case by its 2^nd Decision had in substance barred only the applicant’s intended appeal regarding his claim based on the BOR 2 risk, as opposed to all applicable grounds.

30.  As to the BOR 2 risk, it is pertinent to note that in Re Kulwinder Kaur [2022] HKCA 48 at [59], this court (Chu JA, as Chu VP then was, and Barma and Au JJA) acknowledged there was force in the argument that issues under the BOR 2 risk are not separable from those under the BOR 3 risk, such that “upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk”.

31.  Notwithstanding that the Board in this case did not expressly discuss the merits of the applicant’s intended appeal against the Director’s 2^nd Decision, it was aware of and had applied the authority of The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122[7] in reaching its 2^nd Decision (see [10] of the Board’s 2^nd Decision).  The Board had also considered the “information available to it” (see [9] of the Board’s 2^nd Decision), which would have included material documents such as copies of the applicant’s NCF and the Director’s 1^st Decision.  Further, it appeared that the Board was alert to the need to “evaluate all the circumstances of the case” notwithstanding that no good reason for the delay was proffered by the applicant (see [13] and [20] of the Board’s 2^nd Decision). 

32.  On this basis, we nothing plainly wrong and agree with the Judge’s view at [26] of his decision that even had the Board considered the merits of the applicant’s intended appeal against the Director’s 2^nd Decision (which concerned only the BOR 2 risk), by reason of the unchallenged conclusions reached by the Director in his 1^st Decision regarding the BOR 3 risk, it would have concluded that the applicant’s intended appeal had no merit.  See Re Castillo Raquel Adona at [24] and Re Kulwinder Kaur at [58] and [59].

33.  It cannot be said, for instance, that the applicant’s claim under the BOR 2 risk might have been found to have been arguable had the Board specifically put its mind to the merits of the intended appeal against the Director’s 2^nd Decision (concerning only the BOR 2 risk), given that the Director (and the Board) had found no basis for the applicant’s fear of harm under the BOR 3 risk since (i) his assertions about being persecuted by a gangster named Mr Goyal was “not plausible”; and (ii) his whole case rested on “bare assertions”, the material aspects of which were “implausible and/or incredible and/or unreliable” (see [48]-[49] and [69]-[70] of the Board’s 1^st Decision).

34.  In any event, the applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.

35.  We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

36.  Further, the applicant’s complaint of prejudice by reason of his lack of proficiency in English is unfounded and of little or no merit.  We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English. 

37.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

38.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 29 November 2022 is accordingly dismissed.