RE RAHMAN WASIF

CAMP 191/2018

[2019] HKCA 299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 191 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 80 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 12 May 2017 Wong J refused the applicant’s application for leave to apply for judicial review. Nearly one and a half years later, on 6 November 2018 the applicant applied to the judge for an extension of time to appeal. On 23 November 2018, the judge refused an extension of time. By a summons filed on 10 December 2018, the applicant applies to this court for an extension of time. We have decided to deal with this application on the papers. The applicant provided written submissions on 24 December 2018.

2.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (“the TCAB”) dated 22 February 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 14 March 2016 and 8 December 2016 rejecting his non-refoulement claim.

3.  The applicant is an Indian national.  He entered Hong Kong twice in January 2014 and overstayed.  He lodged a non-refoulement claim on 26 February 2014 on the ground that if he were to be returned to India, he will be harmed or even killed by members of a political party named All India Trinamool Congress (“TMC”) because he used to participate in fights between the Communist Party of India (Marxist) (“CPI(M)”) and TMC.  He claims to have been attacked and threatened.  The applicant’s case has been set out in detail in the decision of the TCAB referred to below.  We will not repeat it here.

4.  By a Notice of Decision dated 14 March 2016 and a Notice of Further Decision dated 8 December 2016, the Director rejected the applicant’s claims.

5.  The TCAB heard the applicant’s appeal against the Director’s decisions on 16 December 2016.  The applicant appeared and was provided with a Hindi interpreter.  He confirmed to TCAB that there were no other additional grounds he wished TCAB to consider at the hearing.  By a decision dated 22 February 2017, the TCAB dismissed the applicant’s appeal. The TCAB found a number of inconsistencies in the applicant’s factual allegations, eg as to when the attack allegedly occurred, the number of people carrying out the attack, the severity of his alleged injuries, etc.  Further the applicant made clear to TCAB at the hearing that he would not continue to fight for the CPI(M) if he returns to India and he had ceased to be a member of the CPI(M). The TCAB found that he would not be at risk of any harm arising out of his membership of the CPI(M) upon his return to India.  The TCAB also did not find any evidence of state acquiescence.  The TCAB concluded that the applicant had failed to make out a case for non-refoulement protection under any of the applicable grounds.   

6.  On 16 March 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the TCAB.  The applicant contended in documents filed in court that he should have had a further screening interview, that he was not aware that his application would be assessed against Country of Origin Information (“COI”) materials, that there was a failure to consider the concept of further state acquiescence and that there was a failure to consider whether the incidents had a psychological or physical impact on him.  

7.  At the applicant’s request, an oral hearing was fixed, and was scheduled for 10:00 am on 12 May 2017.  However, the applicant failed to attend the hearing even by 10:30 a.m. 

8.  The Judge thereupon dealt with the application in the applicant’s absence.  For the reasons set out in the transcript, the Judge dismissed the application (“the 2017 Order”):

“The applicant was not legally represented. He put forward the following grounds of review. Firstly, procedural impropriety of the Director not to afford him opportunity to substantiate his BOR2 risk claim and a decision was made without any further screening interview. There is no absolute right to an oral hearing. In the present case, the applicant had been interviewed in the presence of his legal representative. He did not provide any further information upon invitation by the Immigration Department. There is no indication that he has any further information to provide. In all the circumstances, having regard to the case of ST, CACV115/2013, I do not consider there is any reasonable prospect in arguing this ground.

The second ground against the Director is also one of procedural impropriety in which the Director was criticised for failure to inform the applicant that his application for non-refoulement claim would be assessed in the light of the country of origin material and other material as listed in the Notice of Decision.

The duty of the decision-maker is to obtain the relevant information and take them into account. Whether such information should be particularly drawn to the attention of the applicant depends on the circumstances of the individual cases. In the present case, the COIs quoted by the Director were amongst those frequently referred to in this nature of cases. I do not consider there is a realistic prospect of success of the applicant in pursuing this argument.

The applicant also put forward an argument of procedural impropriety against both the Director and the Adjudicator for failure to consider the concept of extended state acquiescence. I see no realistic prospect of success of the applicant in arguing that the Director and the Adjudicator have failed to consider and decide on the issue of extended form of state acquiescence. From their decisions, both of them had demonstrated that they had done so.

The Director and the Adjudicator were also criticized for failure to apply, or properly apply, paragraph 2 of UN Committee General Comments No. 2, concerning the obligation of a signatory state to adopt reforms on means of redress, aimed at ensuring the safety of its citizens, which are effective. In the light of my assessment and conclusion in relation to the consideration and decision on the part of the Director and Adjudicator on the issue of state acquiescence, I see no realistic prospect of success in pursuing this ground.

The other ground put forward was failure of the Director and Adjudicator to consider the psychological and physical impact of the incidents on the applicant. As regards psychological impact, it was not a matter expressly raised by the applicant prior to this application. In the light of the findings by both the Director and Adjudicator on the frequency and intensity of the attack and injuries on him, I do [not] consider there is a realistic prospect in successfully arguing a failure to consider mental impact on the applicant.

Finally, the applicant argued that both the Director and the Adjudicator did take into account the relevant matters which included, but not limited to, that they consider his claim is a simple and personal matter, that there is no risk of his life. In my judgment, these matters were what both the Director and the Adjudicator were entitled to take into account and I do not consider it an error in law.

All in all, I have considered the decisions of both the Director and the Adjudicator. I am not persuaded that any allegation by the applicant has a realistic prospect of success.

Leave to apply for judicial review is therefore not granted against either the Director or the Adjudicator.”

9.  The 14-day period[1] for the applicant to appeal the 2017 Order expired on 26 May 2017.  It was not until 6 November 2018 that the applicant filed a summons to apply for an extension of time to appeal the 2017 Order and leave to advance an unarticulated “new sole ground of appeal”. 

10.  At a hearing before the Judge on 23 November 2018, the applicant alleged that he had not received the 2017 Order and he was not aware of the 14-day rule in relation to filing an appeal.  He claimed that he only became aware of the 2017 Order when he was told by the Immigration Department.  He claimed that he moved to a new address in September 2018 and he filed a notice of change of address on 2 November 2018. 

11.  The judge considered the applicant’s case and refused leave for reasons set out in his decision of 23 November 2018, in particular:

“As I said, the delay was substantial. In my judgment, the reasons provided by the applicant for the delay are not satisfactory. The more crucial consideration, however, is the prospect of success of the intended appeal. An appeal is to be reviewed the correctness of my decision, and not to reassess the applicant’s non-refoulement claim, or to review the decision of the Board. The applicant did not identify any alleged error of my decision.

At the hearing, he said the ground he wants to advance is that his case had not been checked properly and carefully by the Immigration Department.

Having considered everything said by the applicant, in my judgment there is no reasonable prospect of his intended appeal.  I am of the view that it would be futile to extend the time for appealing.  In all the circumstances, I refuse the application for leave to appeal out of time and I also do not grant leave to advance any new ground of appeal.  The summons of the applicant is dismissed.”  

12.  This led to the applicant’s summons to this court filed on 10 December 2018.

13.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, 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: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134.  Among these factors, the prospect of success of the intended appeal is a crucial consideration: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226.

14.  In this case, the applicant was late by one year and 5 months, which is a very substantial delay.  He has simply made a bare assertion that he had not received the 2017 Order even though it had been sent to his address in 2017.  However more importantly, we do not see any prospects of success in his proposed appeal from the 2017 Order.  The TCAB is the fact-finding tribunal and it had found that the applicant had failed to establish his case because his allegations of attack and threats were inconsistent.  The Judge’s decision in respect of the alleged “procedural improprieties” was clearly correct for the reasons given.   

15.  The applicant’s written submission of 24 December 2018 merely repeated his allegations of an attack and threats.

16.  There is no basis for this Court to exercise the discretion to extend the time for appeal in his favour.  Accordingly, we dismiss the applicant’s summons.

17.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.