RE MOHAMMED NEYAZUDDIN

CAMP 80/2023, [2023] HKCA 1212

On Appeal From [2022] HKCFI 1006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 80 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 336 OF 2019)

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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 8 April 2022, DHCJ Bruno Chan (“the Judge”) refused to grant leave for the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  On 11 July 2022, the applicant took out a summons to apply for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 14 December 2022. 

3.  On 21 February 2023, the applicant filed a summons in CAMP 80/2023 (“the Summons”) with the Court of Appeal for extension of time to appeal against the JR Decision.  He lodged his written submissions on 2 March 2023.

4.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

5.  The Applicant is a national of India.  He last arrived in Hong Kong on 8 August 2016 as a visitor and was permitted to stay until 8 October 2016.  He subsequently overstayed and surrendered to the Immigration Department on 11 October 2016.  On 23 December 2016, he raised a non-refoulement claim on the basis that he will be harmed or killed by his creditor if he is returned to India.  The factual background of this case was succinctly summarised by the Judge at [1] – [3] of the JR Decision ([2022] HKCFI 1006).

6.  By a Notice of Decision dated 23 January 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], BOR 3 risk[2], torture risk[3], and persecution risk[4].

7.  The applicant appealed against the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  He attended an oral hearing on 31 October 2018.  By its decision dated 24 January 2019, the Board dismissed the appeal.  The Board found that the applicant’s claims regarding the alleged loan are not truthful because of significant inconsistencies in his evidence.  Furthermore, the Board did not accept that the money lender would be able to pursue the applicant throughout India.  The Board considered that the applicant could relocate to other parts of India to avoid the alleged risk of harm.  Therefore, the Board rejected the applicant’s claim on all applicable grounds and dismissed the appeal. 

Application for leave to start judicial review

8.  On 4 February 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the decisions of the Director and the Board.  He did not put forward any specific grounds for his intended challenge.

The JR Decision

9.  The Judge considered the application on paper as the applicant did not request for an oral hearing.  After due consideration of the decision of the Board, the Judge refused to grant leave for the applicant to apply for judicial review for reasons set out in [9] and [11] to [12] of the JR Decision:  

“9. On 4 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached copies of the decisions but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge…

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

12. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Application for extension of time to appeal against the JR Decision

10.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 11 July 2022 for an extension of time to appeal.  That was dismissed by the Judge on 14 December 2022. Hence, the Summons to this court.

Discussion

11.  In considering whether to extend time for appealing, 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 (although the lack of prejudice does not mean an extension will be granted). 

12.  As for (1), the applicant was late by more than 2 months when he filed the summons with the Court of First Instance for extension of time.  The delay is substantial.

13.  As for (2), the reasons for the delay, the applicant alleged in his affirmation that he did not receive the court order until 11 July 2022.  The court sent the JR Decision to the applicant’s address as stated in his Form 86 on 8 April 2022 but the mail was returned by the post office.  The court was subsequently provided with the new address of the applicant by the Immigration Department and sent the JR Decision to the applicant again on 20 June 2022.  The delay in receiving the JR Decision was caused by the applicant’s failure to inform the court of his change of address for service.  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]).  The applicant’s explanation cannot justify his substantial delay in the present application.

14.  The most important consideration is (3), the prospect of success of the intended appeal from the JR Decision. 

15.  In his Summons, the applicant stated that he does not want to return to his country because his life is still in danger in his country.  

16.  In his written submissions, he contended that high standards of fairness are required in the determination of a torture claim on the part of the decision maker and the Board acted in a procedurally unfair manner without properly assessing his credibility.  He did not specify the alleged unfairness.  The Board had given detailed reasons (paras. 40 - 46) for rejecting his factual allegations.

17.  The applicant’s grounds and submissions are just bare assertions without particulars or evidence in support.  He also failed to identify any errors of law, or failure to take account of relevant matters already placed before the court, or any other mistakes in the JR Decision.

18.  We are satisfied that the Judge had reviewed the decisions of the Director and the Board with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.   

19.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 21 February 2023.