MADDHESIA BIRENDRA KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 123/2020

[2021] HKCA 622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 123 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1102 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 23 November 2018, the applicant was absent at the hearing before Deputy High Court Judge K W Lung. The judge dismissed his application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim for want of prosecution[1].

2.  On 19 December 2018, the applicant filed a summons for extension of time to appeal against that decision.  The application was heard by the judge on 25 January 2019.  The judge accepted the applicant’s reason for his absence from the last court hearing, which was supported by medical certificate.  He set aside the order of 23 November 2018 and proceeded to consider the applicant’s application for leave to seek judicial review.  The leave application was dismissed by the judge on 6 September 2019[2].

3.  On 30 September 2019, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 20 September 2019.  The applicant failed to identify any error in the judge’s decision and the application was dismissed on 19 June 2020[3].

4.  On 10 August 2020, the applicant took out this renewed application for extension of time to appeal against the judge’s decision of 6 September 2019.

5.  The applicant is a national of India.  He is 32 years old.  He came to Hong Kong as a visitor on 16 January 2014.  He subsequently overstayed and was arrested by the police on 26 February 2014. He lodged a non-refoulement claim on 28 February 2014 on the basis that if he returns to India he will be harmed or killed by his creditor for failure to repay the debt.

The Director’s decisions

6.  By a Notice of Decision dated 16 October 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 3 risk[4], torture risk[5] and persecution risk[6]. 

7.  By a Notice of Further Decision dated 12 September 2017, the Director rejected the applicant’s claim on BOR 2 risk[7] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim. 

The Board’s decision

8.  The Applicant appealed against the Director’s decisions to the Board.  He attended the hearing before the Board on 10 January 2018.  The Board did not accept that the applicant had suffered from any injury and considered that his alleged pain and suffering did not amount to the required level of severity for non-refoulement protection.  The Board further found that the applicant’s problem is a private matter and the creditor did not act in an official capacity.  The Board held that the applicant failed to substantiate his claim on the applicable grounds and dismissed the appeal on 7 June 2018.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 14 June 2018 to seek leave to apply for judicial review against the decision the Board.  He put forward the following grounds for his intended challenge:

(1)  he did not have an interview with the immigration officer on the BOR2 risk;

(2)  he received the hearing bundle only a few days before the hearing;

(3)  the contents of the hearing bundle are in English and he was not provided with translation of the documents;

(4)  he was confused at the hearing before the adjudicator;

(5)  he was not legally represented at the hearing;

(6)  he adjudicator had relied upon hearsay materials to say that he was safe to be repatriated to India; and

(7)  the Director and the adjudicator made their decisions without understanding his situation.

The judge’s decision

10.  The applicant attended the hearing before DHCJ Lung on 25 January 2019.  He submitted at the hearing that he had no comment to the Board’s decision.  He confirmed to the judge that he had had a fair hearing before the Board and he had no complaint against anybody.  He further said before he attended the appeal hearing of the Board, he had a friend to explain the hearing bundle to him and he had come across no difficulty throughout the appeal hearing.  The judge therefore rejected grounds (2) to (4) in view of what the applicant admitted in court.

11.  The judge found that ground (1) failed as it is not necessary for the Director to arrange another interview for BOR 2 risk under the Immigration Ordinance.  Ground (5) failed as an applicant does not have an absolute right to free legal representation at all stages of the proceedings, and the applicant already had the benefit of legal representation in presenting his case to the Director.  The judge also rejected grounds (6) and (7) as they are not supported by any evidence.  He found that the applicant’s case falls outside the protection under the relevant Conventions and the Immigration Ordinance.

12.  The judge was not satisfied there is a reasonable prospect of success in the intended judicial review and refused the leave application on 6 September 2019.

Grounds of intended appeal

13.  The applicant stated the following grounds of appeal in his summons:

(1)  the judge failed to show any good cause to refuse the leave application;

(2)  his problem in his country is not solved and his enemy will kill him if he returns.  The court should grant leave to save his life.

14.  In his written submissions, he made further contentions as follows:

(1)  the Director and the Board did not screen his claim properly and did not consider his education, economic and social status;

(2)  his enemy’s power is growing and they are waiting to kill him.

Analysis and disposition

15.  In considering whether to extend time to appeal 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 was granted.

16.  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 6 September 2019.  The applicant took out a summons at the court below on 30 September 2019.  He was late by ten days.  He explained in his affirmation filed with the court below that he did not receive the court’s decision.

17.  Under Order 59 rule 2B(3) of the Rules of the High Court, the renewed application to the Court of Appeal for leave to appeal out of time should be made within 14 days from the date of the refusal of leave by the judge.  The applicant was again late for more than five weeks when he filed the present summons. 

18.  The applicant’s explanation for the delay is not acceptable.  The court sent the decision to his address by post on 6 September 2019 which was not returned to the court by the post office.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]).

19.  Besides, the applicant did not provide any explanation for the further delay of more than five weeks in filing the present summons.

20.  As his 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.

21.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

22.  His complaint against the judge’s decision is wholly without basis as the judge did give detailed explanation for rejecting the leave application in paragraphs 21 to 27 of the decision given on 6 September 2019 and his decision is well justified.

23.  The rest of his grounds are just bare assertions without particulars and evidence in support.  In particular, he failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

24.  For the above reasons, the applicant does not have any prospect of success in the intended appeal. We therefore refuse to grant leave to appeal out of time and dismiss the summons filed on 10 August 2020.

[1] [2018] HKCFI 2613

[2] [2019] HKCFI 2227

[3] [2020] HKCFI 1174

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.