RE JOHEB CIRAJ CHOUDHARY

CAMP 520/2022, [2023] HKCA 1124

On Appeal From [2020] HKCFI 2963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 520 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2955 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 6 December 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 4 March 2022.  By that order the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 597) (“the EOT Decision”) against the Deputy Judge’s earlier order dated 4 December 2020, refusing the applicant’s application for leave to apply for judicial review ([2020] HKCFI 2963) (“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 20 July 2018 (“the Board’s Decision”) refusing the appeal against the decision of the Director of Immigration (“the Director”) dated 26 March 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

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 India.  He last entered Hong Kong on 20 January 2018.  On 25 January 2018, he surrendered himself to the Immigration Department for being an illegal immigrant.  By the written representation dated 25 January 2018, he raised a non-refoulement claim on the basis that the followers of Shiv Sena, a fanatic political party would cause harm to his life or even kill him if he was to be returned to India, because he had left them and exposed their wrongdoings to a newspaper and did not give them the extortion money.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [3] ‑ [12] of the Leave Decision.

5.  By a Notice of Decision dated 26 March 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

6.  Subsequently, the applicant appealed against the Director’s Decision to the Board.  The Board heard the appeal on 21 June 2018.  After considering the evidence, the Board did not find the applicant’s account of events acceptable as there were inconsistencies and implausibility in his evidence which undermined his credibility.  The Board was of the view that the applicant failed to fall into any of the categories of persecution under the Convention, and the injuries claimed by the applicant did not amount to a minimum level of severity.  There was also no real and personal risk of ill-treatment if he returned to India.  The Board further found that there was no evidence that the applicant would face the risk of arbitrary deprivation of life.  The Board also found that state protection and internal relocation would be available to the applicant.  Accordingly, the Board concluded that the applicant had failed to establish his non‑refoulement claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 24 December 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  By then, he was over 2 months late in taking out his application.  No ground of review was provided in his Form 86.  In his supporting affirmation, he merely stated that he disagreed with the Board Decision and asserted that he would not go back to his country as his life was still in danger.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

8.  By the Leave Decision, the Deputy Judge refused to grant extension of time and dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [29] ‑ [34] of the Leave Decision:

“Judicial review

29. The applicant applied for leave to apply for judicial review on 24/12/2018. In his supporting affirmation, he disagreed with the TCAB decision. The applicant stressed that his life was in danger. He had not pointed out any specific error in the decisions of the TCAB and the Director.

30. In judicial review, this court decides whether there is any error in law and procedures. Whether the decision of the TCAB is irrational. Finding of facts is the duty of the TCAB and the Director. In general, this court would not interfere.

31. In my judgment, there is no error of law or procedure. The decisions are reasonable.

32. The applicant was out of time in filing the Form 86 by about two months. The applicant should have applied for extension of time in the Form 86. He did not provide any explanation for the delay. In considering whether there is good reason for the delay, I have to consider the length of the delay, the reasons for the delay, the merits of the application and the prejudice to the putative respondent if extension was granted.

Conclusion

33. The application is not reasonably arguable. There is no reasonable prospect of success. There is no explanation for the delay. There is no merit in the applicant’s claim. In the circumstances, there is no good reason for extending the time for the leave application.

34.  I refuse leave for judicial review.”

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 11 March 2021, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was almost 3 months late with his intended appeal.  The applicant only alleged that he failed to receive the letter from the Court.

11.  By the EOT Decision, the Deputy Judge noted that the delay was substantial and that the Leave Decision was sent to his last known address on 4 December 2020.  According to the Court’s record, the applicant also collected the Leave Decision on 11 January 2021 from the Court in person and updated his address on the same day.  As the applicant failed to update his address with the Court in time, he must bear the consequences due to his failure.  For the above, and noting that there was no merit in his intended judicial review, the Deputy Judge dismissed his application for extension of time to appeal.

The Present Application

12.  By a summons and supporting affirmation both filed on 6 December 2022, the applicant applied for leave to appeal against the EOT Decision.  In the summons, he merely stated that he failed to get the Court’s letter on time and applied for time approval, he failed to give any reason in support of his application.  In his supporting affirmation, he claimed that he disagreed with the Decision of the High Court.

13.  Contrary to the directions made by the Registrar of Civil Appeals on 6 December 2022, the applicant failed to lodge any written submissions.

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.  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].

17.  In our view, his application has no merit at all and must fail.  We agree with the Deputy Judge that the applicant’s delay of 2.5 months was substantial and he failed to provide any valid explanation for his delay.  Ignorance of the procedural rules and time limits was not a valid reason for his substantial delay.  Furthermore, as correctly noted by the Deputy Judge, the applicant already collected the Leave Decision in person from the Court and that any legal consequences arising from the delay in updating the address with the Court should be borne by the applicant.

18.  More importantly, and in any event, his written submissions are all general and bare assertions and the applicant did not state how the legal propositions cited are relevant to his case.  He also failed to identify any error with specific particulars in the Leave Decision. Accordingly, none of his submissions are proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

19.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  We would therefore dismiss the applicant’s summons filed on 6 December 2022.