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CAMP 32/2022
[2022] HKCA 880
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 32 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 2963 OF 2018)
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Atwal Ravinder Singh |
Applicant |
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Torture Claims Appeal Board / Non‑refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
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Before: Hon Kwan Ag CJHC and Cheung JA in Court
Date of Written Submissions: 7 February 2022
Date of Judgment: 24 June 2022
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J U D G M E N T
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Hon Kwan Ag CJHC (giving the Judgment of the Court):
1. On 19 August 2021, Deputy High Court Judge P Li refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].
2. On 14 January 2022, DHCJ Li dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].
3. On 24 January 2022, the applicant filed the present summons with the Court of Appeal to challenge the decision made by the court. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision made by DHCJ Li dated 19 August 2021.
4. The applicant is a national of India. He is 30 years old. He came to Hong Kong as a visitor on 1 January 2013 and was arrested by the police for overstaying on 18 October 2013. He raised his non-refoulement claim on the basis that he would be harmed or killed by a rival political party, Akali Dal Party (“ADP”).
5. By a Notice of Decision dated 2 November 2017, the Director rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6].
6. The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 9 August 2018. He gave evidence in support of his claims. The Board did not accept the applicant’s credibility as there were inconsistencies and discrepancies in his evidence. In particular, the Board found that the applicant was embellishing his evidence and rejected that he was targeted by the ADP. In any event, the Board found no basis that the applicant would face any risk of torture or persecution in India if he is returned there. The Board therefore dismissed his appeal on 20 December 2018.
The judge’s decision
7. On 24 December 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. He did not supply any grounds in support of his application as he only annexed the decision of the Board in his supporting affirmation. As the applicant did not request for an oral hearing, DHCJ Li considered the application on paper.
8. The judge considered there is no error of law or procedure. The judge was of the view that the Board’s decision was reasonable and accepted the Board’s findings. Thus, the judge concluded that the intended judicial review has no reasonable prospect of success and dismissed his leave application on 19 August 2021.
Grounds of appeal
9. The applicant did not provide any grounds of appeal in his summons save that he stated that he wishes to reject the findings of the judge. As for his supporting affirmation, he reiterated his dangerous situation in India. In his submissions, he cited a research article, and purported to quote from a survey and a report by international organizations on the human rights situation in general in India, which were not raised in the court below.
Analysis and disposition
10. In considering whether to extend time for appealing 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 success of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.
11. 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 judge’s order was made on 19 August 2021. The applicant took out a summons in the court below on 15 September 2021 and was two weeks late. His reason for the delay was that he only learned of the decision on 9 September 2021.
12. The explanation for the delay is not acceptable. As the courts have stated in the past, 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]).
13. As the applicant’s delay is inexcusable, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.
14. In assessing the merits 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.
15. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.
16. In the present case, the applicant simply made bare assertions against the findings of the judge. He did not put forward any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave for him to bring judicial review. The materials he purported to quote in relation to the human rights situation in general in his home country do not assist him, as the Board rejected his evidence owing to important inconsistencies and the judge agreed with the decision of the Board that he failed to prove the primary facts of his claim. The applicant further did not provide any particulars to show that the Board failed to apply high standards of fairness or acted in a procedurally unfair manner. In any event, the applicant failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.
17. For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 19 August 2021 and dismiss the summons filed on 24 January 2022.
(Susan Kwan)
Acting Chief Judge
of the High Court
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(Peter Cheung)
Justice of Appeal
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The Applicant, acting in person
[1] [2021] HKCFI 2411
[2] [2022] HKCFI 120
[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[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 being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[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.
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