RE DAS BINDHA

CAMP 128/2021

[2022] HKCA 39

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 128 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1596/2018)

____________________

____________________

___________________

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 DHCJ KW Lung (“the judge”) dated 20 January 2020 refusing to grant (i) extension of time to apply for leave to apply for judicial review; and (ii) leave to the applicant 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 (“the Board”) dated 19 May 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 15 July 2016 and 8 May 2017 (respectively “the Director’s 1^st and 2^nd Decisions”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  She last entered Hong Kong on 19 July 2013 and was permitted to stay until 26 March 2014.  She overstayed and surrendered herself to the Immigration Department on 23 June 2014.  She lodged a non-refoulement claim on 23 June 2014.

3.  The applicant’s claim was based on death threats by the Muslim community in her neighbourhood by reason of her being a Hindu.  The details of the applicant’s claim have been summarised by the judge at [8] and [9] of the CALL-1 Form[1].

4.  By a Notice of Decision dated 15 July 2016, the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the torture risk[2], the persecution risk[3] and the “BOR 3” risk[4].

5.  By a Notice of Further Decision dated 8 May 2017, the Director also assessed the applicant’s claim based on the “BOR 2” risk[5], and decided against her.

6.  The applicant appealed to the Board.  After a hearing on 9 May 2017, the Board dismissed the appeal on 19 May 2017.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found that the applicant, by reason of the inconsistencies in her evidence, was not a credible witness.  Accordingly, the Board found that the applicant had failed to establish the material facts underlying her claim.

The judge’s decision

7.  The Form 86 filed by the applicant on 10 August 2018, which sought to judicially review the Board’s Decision, contained no grounds of judicial review.  In her supporting affirmation dated 9 August 2018, she merely contended that she had never received the Board’s Decision.

8.  The applicant, upon the invitation of the court, attended the hearing before the judge on 26 July 2019.

9.  After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the judge refused to grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review (as well as extension of time to make the leave application) at [15] to [21] of the CALL‑1 Form:

“Application for leave to apply for judicial review

15. In her Form 86 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decisions and the Board’s Decision respectively.

16. In her affirmation in support of her application, she did not set out any particular reasons.

DISCUSSION

17. The applicant appeared before me. She was evasive when she answered my questions. She did complain that before the Adjudicator she was told by the interpreter to say yes to the questions put to her. She was unable to give any particulars. I have no reason to rely upon her evidence.

18. The applicant cannot apply for leave to apply for judicial review of the Director’s decision. Re. Moshsin Ali [2018] HKCA 549.

19. As the Board did not accept her evidence on the facts, she has no factual basis in support of her claims.

20. I find that the applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

21. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her extension of time for her application for leave to apply for the intended judicial review. Accordingly, I dismiss her application.”

10.  According to the court’s record, a copy of the CALL-1 form and a sealed copy of the judge’s order were sent by post to the applicant at her last known address on 20 January 2020.

The present application for extension of time to appeal

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  According to Order 59 rule 3(1), an appeal to this court must be brought by motion in the form of a Notice of Appeal. 

12.  The applicant did not file a Notice of Appeal within 14 days of the judge’s decision dated 20 January 2020. She did however, on 23 January 2020, take out a summons in the Court of First Instance (“the 2020 Summons”), wherein she stated:

“I am not agree with [the Board’s Decision] my request is please reconsider my application again. It is really risk of life…”

13.  In her supporting affirmation, the applicant again requested the “High Court” to reconsider her case.

14.  The judge handed down his decision on the 2020 Summons on 13 April 2021, over than a year after the 2020 Summons was filed.  At [1] of that decision, the judge explained that the case file was mislaid which led to the late determination of the 2020 Summons.  For this reason, the judge regarded the 2020 Summons as in effect an application for extension of time for appeal against his decision dated 20 January 2020. 

15.  It is uncertain what relief the applicant intended to obtain by way of her 2020 Summons, or pursuant to what provision(s) that application was made.  In our view, in any event, by reason of Order 59 rule 3(1) and other relevant provisions governing appeals to this court, the 2020 Summons cannot be regarded as the lodgement of an appeal by the applicant.  Therefore in the circumstances, despite the unfortunate delay in the court’s decision dated 13 April 2021, which had long ago rendered the applicant’s bringing of any appeal out of time, we shall for the purpose of this judgment, like the judge, treat this application as an application for extension of time to appeal.

16.  By a summons filed on 27 April 2021, the applicant renewed her application for an extension of time to appeal before this court.  In the summons, the applicant stated:

“I would like to request that I am seeking for the justice and kindness from the high court.”

17.  In her supporting affirmation filed on the same date, the applicant deposed:

“I want to humbly request that my enemies are still looking for me in India as I informed by my friends from me please reconsider my case even I have no the strong evidence.”

18.  In her written submissions dated 8 June 2021, the applicant again simply reiterated the dangers which she would face if refouled to India.

Discussion

19.  Having considered the papers and the applicant’s written submissions, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

20.  As pointed out by the judge at [7] and [8] of his decision dated 13 April 2021, the applicant had all along not contended that she had not received the court’s CALL-1 form (i.e. the judge’s decision dated 20 January 2020).  Moreover, the CALL-1 form and the sealed order were delivered to the applicant’s last known address on 13 April 2021, and were unreturned in the post.

21.  We acknowledge that it is possible for the applicant to have (wrongly) regarded the 2020 Summons as her lodgement of an appeal against the judge’s decision dated 20 January 2020, and that during the intervening period she may have been waiting for the judge’s determination of her “appeal”.  However, ignorance of the law is not a valid reason for the delay in bringing an intended appeal.

22.  Turning to the applicant’s present application by way of summons filed on 27 April 2021 with this court, her supporting affirmation and her written submissions, nothing therein provided any explanation for the delay in bringing the intended appeal.

23.  We have nonetheless proceeded to consider the merits of the intended appeal.

24.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed by the judge.

25.  The applicant has failed to identify any arguable error of law by the judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

26.  In the circumstances, we do not see any prospect of success in the intended appeal, and this court will not grant extension of time for a hopeless appeal.  The summons filed on 27 April 2021 is accordingly dismissed.