RE NARESH MASIH

CAMP 258/2021

[2021] HKCA 1479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 258 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1558 OF 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 29 June 2020 refusing to extend the time for applying leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of her application.  Despite directions given by the Registrar of Civil Appeals, she has not lodged a written submission.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 26 April 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 15 February 2017 rejecting his non-refoulement claim having regard to the BOR 2 risk ground.

5.  The applicant is an Indian national aged 36.  He arrived in Hong Kong on 27 July 2015 and upon being refused entry by the Director, raised a non-refoulement claim.  His claim is based on fear of being harmed or killed by members of Akali Dal Party because he is a supporter of Congress Party and had refused to join their party.  The details of the applicant’s claim were set out in the Director’s first decision dated 2 October 2015 at [6] and the Board’s first decision dated 24 December 2015 at [6] to [8].  We will not repeat them.     

6.  In his first decision dated 2 October 2015, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2] and persecution risk[3] and grounds.

7.  The applicant’s appeal to the Board was heard on 1 December 2015.  By its decision dated 24 December 2015, the Board dismissed the appeal.  The Board found the applicant’s case unreliable, having regard to the major and fundamental differences between the oral evidence and the version presented in the non-refoulement form.  The Board rejected all the material allegations made by the applicant and concluded that he failed to establish that he faces a real risk of harm that warrants non-refoulement protection on any of the appliable grounds.

8.  By a further decision dated 15 February 2017, the Director assessed the applicant’s claim on the BOR 2 risk[4] ground and decided against it.  The applicant appealed the decision to the Board.  By its decision dated 26 April 2018, the Board dismissed the appeal, having found there was no evidence to support a risk of harm under the BOR 2 risk ground.

9.  Order 53 rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.

10.  On 6 August 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision of 26 April 2018.  The application was late by 11 days.  The applicant did not provide any ground for seeking relief. He only stated in the supporting affirmation that he could not return to his country because his life would be in danger. 

11.  The Judge dealt with the application on the papers.  By a Form CALL-1 dated 29 June 2020[5], the Judge refused to extend the time for applying for leave to apply for judicial review.  The Judge was of the view that the intended judicial review had no reasonable prospect of success as there was no error of law or procedural unfairness in the Board’s decision.  Nor did he consider the Board’s decision Wednesbury unreasonable.      

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 13 July 2020.

13.  By a summons filed on 30 July 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge considered the application on papers, and by his decision handed down on 12 July 2021[6] refused the application. 

14.  On 19 July 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

15.  In deciding whether to extend time for appealing against the Judge’s decision refusing to extend the time for applying for leave to bring judicial review, the court has to consider: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

16.  The applicant was late by more than two weeks when he filed the summons for extension of time in the Court of First Instance.  The delay is not insubstantial.  In the present application, the applicant did not provide any explanation for the delay.         

17.  As to the merits of the intended appeal, we 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].

18.  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 judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

19.  In the present application, the applicant put forward the following ground in his supporting affirmation:

“The decision made by [the Judge] has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. I would like to appeal out of time.”

20.  We do not consider the ground to be arguable.  The applicant did not request an oral hearing in his application and the Judge was entitled to deal with his application on the papers.  Importantly, the applicant had not provided any explanation for his delay in bringing the application for judicial review.  We have also examined the Board’s decision, and do not discern any legal errors, irrationality or procedural irregularities in the Board’s findings and decision.  In the circumstances, the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing to extend the time for the judicial review application.

21.  As the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 19 July 2021.