RE SHIN JEONG SHIK

CAMP 5/2022

[2022] HKCA 1387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 5 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 3018 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  By a summons filed on 4 January 2022, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge P Li (“the Deputy Judge”)  dated 22 December 2021. By that order the Deputy Judge refused the applicant’s application for extension of time to appeal ([2021] HKCFI 3760)  (“the EOT Decision”)  against his earlier order dated 25 March 2021, refusing the applicant’s application for leave to apply for judicial review ([2021] HKCFI 761)  (“Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 19 October 2018 (“the Board’s Decision”), dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  respectively dated 11 November 2015 and 26 June 2017 rejecting his claim for non-refoulement protection (collectively referred as “the Director’s Decisions”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of the Republic of Korea.  He entered Hong Kong on 9 April 2012 and was refused permission to land on the ground of using a false travel document.  On 10 April 2012, he was arrested by the police for using a false travel document and other offences.  On 3 May 2012, he was convicted and upon completion of his imprisonment terms, he was transferred to the Castle Peak Bay Immigration Centre on 8 December 2012.  By way of written representations dated 21 December 2012, 3 January 2013 and 22 January 2013, he raised a non-refoulement claim on the basis that his life would be in danger if he returned to Korea owing to his inability to repay the outstanding loan to the loan shark.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [11] of the Leave Decision.

5.  By a Notice of Decision dated 11 November 2015, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR3 risk[2] and persecution risk[3].  By a Notice of Further Decision dated 26 June 2017, the Director further rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[4].

6.  The applicant then appealed against the Director’s Decisions to the Board.  On 13 February 2018, he attended an oral hearing before the Board.  On 19 October 2018, the Board dismissed his appeal.  The Board found that the applicant was a thoroughly untrustworthy witness and his account was riddled with inconsistencies and implausibilities.  Having assessed the evidence, the Board found that the applicant failed to adduce any reliable evidence that would show that he faced a real or genuine risk or substantial grounds for believing that he would suffer the harm he claimed to fear if refouled.  Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 31 December 2018, the applicant filed a Form 86 with a supporting affidavit applying for leave to apply for judicial review against the Board’s Decision. In his Form 86 and supporting affidavit, the applicant only stated that he did not agree with the Board’s Decision without specifying any error in the Board’s Decision.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out in detail at [17] - [19] of the Leave Decision:

“17. The applicant filed the leave application for judicial review on 31/12/2018. In the Form 86, he disagreed with the TCAB. He did not point out any specific error in the decision.

18. I have considered the evidence in this case. The applicant was inconsistent in some material aspects. I agree with the decisions of the adjudicator and the Director. They are reasonable. In my view, there was no error of law nor procedure.

Conclusion

19. I refuse leave for judicial review.  This case is not reasonably arguable.  There is no reasonable prospect of success.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 17 June 2021, the applicant filed a summons (“the EOT Summons”)  together with a supporting affidavit for extension of time to appeal against the Leave Decision.  By then, he was over two months late with his intended appeal.  In his summons and supporting affidavit, he contended that he received the Court’s order on 28 March 2021 but he had exacerbation of gout in his knee and fingers and was unable to move because of the pain.

11.  By the EOT Decision, the Deputy Judge considered that in the absence of any medical evidence, the applicant’s delay could not be explained just because of gout.  As there was no merit in the intended judicial review, having considered all factors, the Deputy Judge refused to grant the applicant extension of time to appeal.

The Present Application

12.  By a summons and supporting affirmation both filed on 4 January 2022, the applicant applied for leave to appeal against the EOT Decision. In his summons and supporting affirmation, the applicant claimed that he was so sick and painful and could not walk.  He claimed that he consulted his doctor three times but his doctor had later “quitted to work” and the applicant could not obtain any medical reports.

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 4 January 2022 and 19 January 2022, the applicant lodged his written submissions on 31 January 2022.  In those submissions, the applicant again contended that he was sick and could not walk and he could not find his old doctor to provide his medical records and bills.  He again alleged that he previously consulted his doctor three times and was thus late in taking out his appeal.  He further submitted two Chinese medicine prescriptions respectively dated 15 January 2022 and 29 January 2022 which described a diagnosis of palm pain.

Discussion

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  We consider that the applicant’s delay of over two months as very substantial and we agree with the Deputy Judge that the applicant had failed to give any good reason for his delay.  Even taking his case at his highest, the Chinese medicine prescriptions only showed a diagnosis of palm pain on 15 January 2022 and 29 January 2022 and did not support the applicant’s allegation of gout in his knee-joint and fingers back in March 2021.  There is plainly no evidence to support his alleged reasons for delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

17.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  The applicant’s appeal is clearly without merit.  Nowhere in his summons, supporting affirmation or written submissions did he identify any error in the Leave Decision with specific particulars.  Accordingly, there is no proper ground of appeal and clearly no basis to disturb the Leave Decision.

19.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 4 January 2022 is dismissed.