RE PIYARA MASIH

CAMP 25/2022

[2022] HKCA 431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 25 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 762/2019)

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J U D G M E N T

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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 K W Lung (“the Judge”)  dated 22 November 2021 refusing 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 14 March 2019 (“the Board’s Decision”)  dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  dated 16 March 2015 and 18 November 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”).

Background

2.  The applicant is a national of India.  He arrived in Hong Kong on 30 December 2013 and was refused permission to land on the same day.  The applicant thereafter lodged a non-refoulement claim on 3 January 2014.

3.  The applicant’s claim was based on a fear of being harmed or killed by the Sikh leaders of his village if he was refouled to India, because of his conversion to Christianity.  The details of the applicant’s claim have been summarised by the Judge at [5] of his decision (“the CALL-1 Form”)[1].

4.  By Notices of Decision dated 16 March 2015 and 18 November 2016, the Director decided against the applicant’s claim.  The Director’s Decisions covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  As the applicant was late in filing the Notice of Appeal/Petition, the Board had to decide under section 37ZT(2)  of the Immigration Ordinance, Cap 115 whether to allow the late filing of the notice.  After considering the applicant’s explanation for the delay, the Board held that the delay was inexcusable and refused to allow the late filing of the notice.  The Board also considered the merits of the applicant’s non-refoulement claim, and concluded that such merits were insufficient to weigh in favour of exercising the discretion to allow the late filing.

The Judge’s decision

6.  The applicant filed a Form 86 on 19 March 2019 seeking to judicially review the Board’s Decision without setting out any grounds of review.  In his supporting affidavit, he stated that the “Immigration Department … disregard my dangerous situation”.  

7.  After summarizing 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 for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [20] of the CALL-1 Form:

“12.   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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)…Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15.  It is within the Board’s power to find that the applicant’s appeal was late and that his explanations for the delay were not persuasive. 

16.  The Board had taken into account of the requirement of considering the merits of the applicant’s case under the guidance of the Court of Appeal in Karamjit Singh [2018] HKCA 460 and the manner in which the assessment of the merits of the case should be conducted as held by the court in Satbinder Singh v Wesley Wong & Ors HCAL 133/2015. It is apparent that the Board had considered the Director’s Decision and the Director’s Further Decision before it said in paragraph 24: ‘… I consider that the merits of his non-refoulement claim are insufficient to weigh in favour of the discretion to allow the late filing.  There are no other matters known to the Board or revealed by the factual basis of the Petitioner’s claim.’

17.  The applicant has submitted no valid ground to assist his application.  The Board has, in fact, considered the merit of his case, which it found to have no merit at all.  The Board is justified to refuse extension of time for the late filing of the applicant’s Notice of Appeal.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

20.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The present application for extension of time to appeal

8.  The applicant’s address as stated in his Form 86 was at To Kwa Wan Road, To Kwa Wan (“the To Kwa Wan Road 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 To Kwa Wan Road Address on 22 November 2021.  This letter was not returned undelivered.  

9.  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 22 November 2021.

10.  The applicant took out a summons in the Court of First Instance on 14 December 2021 seeking extension of time to appeal, in which his address was stated to be at Hamilton Street, Yau Ma Tei.  He stated in the summons and his supporting affirmation that he did not receive the CALL-1 Form in time.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 7 January 2022[6].

12.  By a summons filed on 19 January 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant apologised for missing the deadline for appeal, and again claimed that he did not receive the Judge’s decision in time.

13.  In the applicant’s written submissions dated 4 February 2022, he repeated his fears and dangers if returned to India, and stated that “the High Court did not properly see my claim”.

Discussion

14.  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.

15.  The applicant has proffered no reason or explanation for the delay in bringing the intended appeal.  It would seem that the applicant may have changed his address.  If so, it was incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with him.  

16.  In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

17.  We have nonetheless proceeded to consider the merits of the intended appeal.

18.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

19.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

20.  Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)  & (4)]. 

21.  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.

22.  For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 19 January 2022 is accordingly dismissed.