RE MITTAL SANJEEV

CAMP 176/2018

[2019] HKCA 409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 176 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 832/2017)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 14 September 2018 refusing leave 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 dated 22 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 15 December 2015 and 1 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 24 December 2008 and was permitted to remain until 8 January 2009 but overstayed.  He was arrested by the police on 22 January 2009.  He lodged a non-refoulement claim on 24 January 2009. 

3.  The applicant’s claim was based on threats from supporters of a rival political party.  The details of the applicant’s claim have been summarised by the judge at [1] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 15 December 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 1 December 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After hearings on 29 March 2017 and 7 April 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 22 September 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [56] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [60] that state protection would be available for the applicant.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 1 November 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 1 November 2017, the applicant advanced the following grounds for judicial review which are summarised below:

(i)   that he was not provided any legal assistance or representation in his appeal before the Board; and

(ii)   that it was unfair to reject his BOR 2 risk claim as he was unable to read or write English and without any assistance from lawyer or interpreter he did not know how to submit any additional facts or make any further submissions on his BOR 2 risk claim.   

10.  In the affirmation, the applicant also informed the court that he is married and is applying for a dependent visa.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the deputy judge refused to give leave for judicial review.  The deputy judge gave the following reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL-1 Form:

“12. For his complaint in ground (1) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator with the assistance of an interpreter without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

14. As for his complaint under ground (2) of not being able to submit any additional facts or presentation regarding his BOR 2 risk claim without legal assistance or interpreter, the fact is that he never raised any issue with it more than four months later in his two oral hearings before the Board, and if indeed he did have any additional facts or further submissions to make he would have done so during those hearings or anytime thereafter during the appeal process before the Board, but which he never did. Even now in his leave application including an oral hearing before me, he did not make any further representation about his BOR 2 risk claim. In the circumstances and in the absence of any response from the applicant to the earlier invitation for him to submit any additional facts relevant to his BOR 2 risk claim, the Director was entitled to assess such claim of his based on all the representations already made by and on his behalf as well as all the available evidence, which the Director did in his further decision.

15. I also note that all the court documents including letters from the applicant were written in English which indicates either that he is familiar with the English language or has access to such language assistance, while his affirmations were also in English and did not contain any interpretation clause, which again suggests that he can understand the English language without the need for interpretation. As such I do not find any arguable basis to challenge the fairness of the process on the ground of lack of legal or language assistance in respect of his BOR 2 risk claim.

16. As regards the applicant’s argument in his affirmation that as he has now formed a family in Hong Kong with a stepson, and as his wife has applied for him a dependent visa with the Immigration Department, his refoulement to India now would rob his wife a husband and his stepson a father, I note that this argument was never run in his process before the Immigration Department or the Board, and that in any event it is not arguable under any of the applicable grounds in a non-refoulement claim.

17. In the premises and having proceeded to consider 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.

18. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

12.  According to the court’s records, a copy of the CALL-1 Form and the sealed of the deputy judge’s order were sent to the applicant on 14 September 2018.

Application for extension of time to appeal and grounds for appeal

13.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 4 October 2018, the applicant sought leave to appeal out of time.  His application was dismissed by the deputy judge on 20 November 2018.

14.  By a summons dated 27 November 2018, he renewed his application for an extension of time to appeal before this court.  In the affirmation dated 27 November 2018, he explained that he was late because he did not receive the CALL-1 Form until 6 days later.  This is different from his explanation in his affirmation dated 4 October 2018 where he said that the delay was caused by “language problem” and the need to consult others on how to proceed.

15.  The applicant did not provide any draft Notice of Appeal.  From the summons and affirmation both dated 27 November 2018, the intended ground of appeal is based on the failure by the judge to consider the impact on the applicant’s family (including his stepson) if the applicant is refouled back to India.

16.  In his skeleton submissions dated 17 December 2018, the applicant submitted that he is waiting for the results of his application for a dependent visa.  He explained why it is unsafe for him to return to India.  He asked the court to consider his situation and his family in Hong Kong.

Discussion

17.  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.

18.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  The applicant suggested, for the first time in this court, that he received the CALL-1 Form 6 days late.  We are not satisfied that this explanation or the explanation given in the court below were genuine.

19.  Nonetheless, as the delay was relatively short we will consider the merits of the intended appeal. 

20.  The only ground of the intended appeal is based on the applicant’s family circumstances.  As the judge correctly held at [16], this is not a ground for seeking non-refoulement protection.  This is not a viable ground for giving leave to apply for judicial review or for granting the extension of time.

21.  For these reasons, we do not see any prospect of success in the intended appeal. We will not grant extension of time for a hopeless appeal.  The summons of 27 November 2018 is dismissed accordingly.

22.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.