RE RAJ NARAYAN

HCAL 1228/2021

[2022] HKCFI 1785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1228 OF 2021

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D E C I S I O N

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The application

1.  This is an application for extension of time to apply for leave to appeal against the Court’s decision dated 11 October 2021 (“the Court’s decision”) rejecting the applicant’s application for judicial review of the Director’s Decision dated 26 July 2021 (the “Director’s Decision”), which rejected his application for a subsequent claim of HCAL 679 of 2018 (the “previous claim”). The Court had also imposed a Restrictive Proceedings Order (“RPO”) on him, prohibiting him from making further application or continuing with any existing proceedings on the same or similar facts of his previous claim without leave of the Court.

2.  The deadline for the applicant to appeal against the Court’s decision is on 26 October 2021[1]. The applicant, having applied for leave to appeal, made his application for withdrawing his application for leave to appeal by letter dated 6 January 2022. However, by letter dated 13 January 2022, which was received by the court registry on 18 January 2022, the applicant stated that he wanted to reinstate his application for leave to appeal. By then, his application is out of time.

The procedural history

3.  The applicant is an illegal immigrant from India. He raised non-refoulement claim with the Immigration Department on 24 July 2015 on the grounds of Torture risk under the Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention and subsequently on BOR 2 risk, Right of Life risk under Article 2 of the Bills of Right Ordinance.

4.  His claim was rejected by the Director by Notice of Decision dated 22 August 2017.

5.  He appealed to the Torture Claim Appeal Board (the “Board”). The Board, by it Decision dated 13 April 2018, dismissed his appeal.

6.  He applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 21 March 2019.

7.  He appealed against the Court’s Order to the Court of Appeal and his appeal was dismissed by the Court of Appeal on 12 August 2019.

8.  He applied by notice of motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal and his application was dismissed by the Court of Appeal on 11 November 2019.

9.  His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 23 February 2021.

10.  He applied to the Director for subsequent claim by letter dated 1 March 2021 and was rejected by the Director’s Decision.

Application for appeal of the Court’s decision out of time

11.  The delay is about 3 months, which is significant.

12.  The Court shall, nevertheless, consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall first consider the merits of the case.

13.  In Re Adumekwe Rowland Ejike [2019] HKCA 702 held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

14.  In his written submissions he has raised the following relevant grounds in support of his application:

(i) his enemies in India are still looking for him and harassing his family;

(ii) it is doubtful if state protection is available, given rife corruption in India and there is a real risk that he would suffer ill-treatment at the hands of his enemies upon his return to India;

(iii) the above matters are subsequent relevant materials, different in nature from the original claim, which have not been taken into account;

(iv) the Court has failed to process and consider his case with high standards of fairness;

(v) although the interpreter had explained the RPO to him before the hearing, this approach is unsatisfactory, unsafe and unreasonable because he was only given very short notice of the proposed RPO and he was under tense atmosphere in court, there being no ascertainment if he understood the nature of the RPO;

(vi) he was not given sufficient time to prepare for the RPO and his fundamental right to seek legal advice for that matter in his best interest was denied.

15.  A hearing was fixed for the applicant to clarify his positions before the Court on 7 March 2022. Because of the spread of COVID-19 virus, the court suspended the hearing and adjourned it to be heard on 18 May 2022. Before me, the applicant said the legal service of the duty lawyer scheme was not good. He simply wants this Court to consider his case as he is old and poor and his problems in India remain.

16.  As to the grounds under paragraph 14, grounds (1), (2) and (3) had been considered by the Director and the Board in the previous claim and they had rejected them. Ground (4) is his opinion and comment without any evidence in support.

17.  As to Grounds (5) and (6), this procedure was initiated by the Court in view of the procedural history and his subsequent claim, which the Director decided that it was based upon the same or similar facts of his previous claim. It is an abuse of the court’s process and must be stopped in order to protect the public interest for the administration of justice. Whether the court should make the RPO depends on the procedural history and the explanation that the applicant may make before the court. This is why the applicant was invited to attend court to show cause why the RPO should not be made by the court. The applicant confirmed that he understood the contents of the RPO as explained to him by the court interpreter. He did not deny the procedural history of his case. He also told the court that his friend had explained the Director’ Decision to him. He also said that he just needed some time and his problems would be solved. He could then go back to his children. He did not say that he did not understand the nature of the RPO. Nor did he ask for an adjournment for him to instruct his lawyer. In the circumstances, there is no evidence to show that he was unfairly treated in the hearing before the court.

18.  As the hearing was adjourned, he has had plenty of time to make preparation for his case. Up to date, there is nothing further from the applicant to argue that the RPO was unfair to him.

19.  In the circumstances, I find that there is no realistic prospect in the applicant’s intended appeal against the Court’s order. Accordingly, I dismiss the applicant’s application.