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

CAMP 90/2021

[2021] HKCA 1393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 90 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 600 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  On 24 May 2019, Deputy High Court Judge Bruno Chan refused to grant extension of time for the applicant to apply for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 28 September 2020, the applicant filed a summons for leave to appeal out of time against that decision as the time for filing his appeal ended on 10 June 2019.  The applicant’s summons was dismissed by DHCJ Bruno Chan on 11 March 2021[2].

3.  On 18 March 2021, the applicant filed with the Court of Appeal a renewed application for leave to appeal out of time.  He has not lodged any submissions for this application as directed by the Registrar of Civil Appeal on 10 May 2021.

4.  The applicant is a national of India.  He is 30 years old.  He last arrived in Hong Kong on 18 October 2014 as a visitor and subsequently overstayed.  He was arrested by the police on 10 February 2015. On 12 February 2015, he raised a non-refoulement claim on the basis that he will be harmed or killed by his creditor for failing to repay his debt if he returns to India.

The Director’s decision

5.  By a Notice of Decision dated 28 April 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

The Board’s decision

6.  On 27 July 2017, the applicant applied for late filing of the notice of appeal against the Director’s decision to the Board. The Board accepted that the applicant did not receive the Director’s decision until 24 May 2017.  Pursuant to section 37ZS(1) of the Immigration Ordinance, Cap 115, the notice of appeal has to be filed with the Board within 14 days after the Director’s decision is given to the applicant.  The Board considered there were no special circumstances in the applicant’s case which can justify his delay after the expiry of the 14-day period from the date he received the Director’s decision.  Therefore, the Board dismissed the application on 12 October 2017.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 10 April 2018 for leave to apply for judicial review against the decision of the Board, after the expiry of the three-month period for applying for leave to bring judicial review.  He did not provide any specific grounds for his intended challenge but only stated in his supporting affirmation that he was not satisfied with the decision and asked the court to make a fair decision.

The judge’s decision

8.  The applicant was absent from the hearing scheduled before DHCJ Bruno Chan on 14 March 2019 without providing any explanation. The judge considered the leave application on paper.  After reviewing the Board’s decision, the judge held there is no failure on the part of the Board to apply high standards of fairness in the decision and the applicant had failed to provide any good reason for his delay.  Therefore, the judge refused to grant extension of time and dismissed the leave application on 24 May 2019.

Grounds of intended appeal

9.  In the present application, the applicant did not state any grounds of appeal in his summons or affirmation.

Analysis and disposition

10.  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.

11.  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 order was made on 24 May 2019.  The applicant took out a summons for leave to appeal out of time at the court below on 28 September 2020.  He was late by more than 13 months, exclusive of the court’s summer vacation in August.  The delay is very substantial.

12.  The applicant told the judge at the hearing below that he did not receive the decision by post as he was detained in the Castle Peak Bay Immigration Centre at the material time.  He submitted that he was not aware of the decision until sometime in September 2020.   However, the written confirmation from the Immigration Department dated 19 March 2019 showed that the applicant had been released on recognizance on 31 December 2018.  A reported address of the applicant was also stated in the said written confirmation.  The court sent the decision to that address on 24 May 2019 and the mail was not returned to the court.  Under these circumstances, the applicant’s explanation cannot justify his substantial delay.

13.  As the delay is inexcusable, the applicant 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.

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  No viable ground has been put forward by the applicant to reverse the judge’s decision in the present application.  The applicant failed to show any prospect of success in his intended appeal.  We refuse to exercise our discretion to extend time to appeal against the judge’s decision dated 24 May 2019 and dismiss the summons filed on 18 March 2021.