RE PAL JITENDER

CAMP 200/2022, [2023] HKCA 818

On Appeal From [2021] HKCFI 2521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 200 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2709 OF 2018)

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J U D G M E N T

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

1.  On 31 August 2021, DHCJ Bruno Chan (“the Judge”) refused to grant an extension of time for the application for leave to apply for judicial review concerning the applicant’s non-refoulement claim and dismissed the leave application (“the JR Decision”) [2021] HKCFI 2521. Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 12 October 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 4 May 2022 [2022] HKCFI 1189. 

3.  On 17 June 2022, the applicant filed a summons in CAMP 200/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal against the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 17 June 2022, the applicant should lodge his written submissions in support of the Summons on or before 4 July 2022. However, he failed to do so.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

5.  By way of letter dated 7 March 2023, the applicant applied to withdraw his summons filed on 17 June 2022 for an extension of time to appeal against the JR Decision.  He explained in his letter that his problem has been solved and he wants to go back to India to reunite with his family.  The practice of this court is to consider, and if appropriate, dismiss such application instead of merely granting leave to withdraw: see Rini Artini [2020] HKCA 709 at [9].

6.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

7.  The applicant is a national of India. He arrived in Hong Kong on 16 February 2015.  When he was refused entry by the Immigration Department, he raised a non-refoulement claim alleging that if refouled, he would be harmed or even killed by certain local supporter of a rival political party Aam Aadmi Party (“AAP”).  The factual background of this case was succinctly summarised by the Judge at [2] – [3] of the JR Decision ([2021] HKCFI 2521).

8.  By a Notice of Decision dated 21 April 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 3 risk[1], the torture risk[2] and the persecution risk[3] (“the Director’s 1^st Decision”).  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from Avtar Singh and his men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, and that there is no reliable evidence that the applicant had been specifically targeted for harm.  Further, it is doubtful that there would still be any adverse interest in the applicant after a long lapse of time.  In any event, objective Country of Origin Information (“COI”) suggested that there is reasonable state protection, and reasonable internal relocation alternatives are available in India.

9.  On 7 May 2015, the applicant filed his Notice of Appeal with the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) against the Director’s 1^st Decision. The applicant had been late by one day outside the 14-day period required for filing of a notice of appeal under Section 37ZS(1) of the Immigration Ordinance (Cap. 115) (“IO”). However, he did not provide any reason for the delay. On 18 May 2015 the Board received a revised Notice of Appeal with a statement of reasons for delay stated in section 5 as follows:

“I beg for your pardon for late submission of my appeal but the lawyer assigned to me had handed over the document, which said that my claim was rejected to me only on 23^rd Thursday. Earlier I had never written any appeal that is I took 5 days to write my appeal. However, I had delivered my appeal to the Welfare Officer 7 days ahead, i.e. on 29^th., seven days in advance. Despite that, I am asking you for pardon for delayed submission of my appeal. Please accept my appeal for which I will be very much grateful to you.”

10.  As for the grounds of his intended appeal, the applicant just repeated his claim of fear of harm from Avtar Singh and the AAP followers.

11.  Pursuant to Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the applicant’s Notice of Appeal.  By a written notice dated 5 August 2015, the Board refused to allow the late filing of the Notice of Appeal as it found that the applicant’s reason for his delay was his bare assertion unsupported by any documentary evidence which he could have easily obtained from his welfare officer.  The Board had also considered the Director’s 1^st Decision and considered that the underlying appeal was unmeritorious for the reasons stated at [8] of the Board’s decision:

“I have also gone through the Notice of Decision. It was just a dispute between him and Avtar Singh in respect of dispute over his refusal to join Avtar Singh’s Aam Aadmi Party because he was a supporter of Bharatiya Janata Party. The injuries he suffered, if any, was minor injuries. It was also not a case involving persecution risk. The Immigration Officer on behalf of the Director of Immigration had analysed his case in detail and fairly. I cannot find fault with the finding. The chance of success on appeal/petition is extremely slim.”

12.  For the aforesaid reasons the Board dismissed the applicant’s application for leave to file the appeal/petition out of time.

13.  On 19 January 2017, the Director on his own initiative invited the applicant to submit additional facts which may be relevant to his non-refoulement claim in respect of his non-derogable rights to life under Article 2 (“BOR 2 Risk”)[4].  In the absence of any response from the applicant, the Director, by a Notice of Further Decision dated 7 February 2017 rejected his claim on the BOR 2 risk (“the Director’s 2^nd Decision”).  The applicant did not file any appeal against the Director’s 2^nd Decision.

Application for leave to apply for judicial review

14.  On 29 November 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  By then the applicant was seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose.  As the last day of the three-month period for him to file his Form 86 fell on 5 November 2015, the applicant was therefore more than 3 years late with his application.

15.  In his supporting affirmation, he complained that he was not informed of the Board’s decision until later when he reported on his recognizance to the Immigration Department and that it was unfair for the Board to dismiss his appeal without any oral hearing as he was not given any opportunity to present his appeal.

The JR Decision

16.  The applicant did not request for an oral hearing and the Judge disposed of the application on paper.  After due consideration of the Director’s and the Board’s decisions, and the grounds of his intended challenge, the Judge refused to grant an extension of time and dismissed the leave application for reasons set out in [14] - [23] of the JR Decision:

“14. In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial and excessive, for which as noted above that he explained in his affirmation that he never received the Board’s decision until much later when he reported on his recognizance that he was informed by the Immigration Department.

15. The Applicant did not provide any further details or particulars or documentary evidence to corroborate his bare assertions, but in his second and revised Notice of Appeal received by the Board on 18 May 2015, the Applicant did state that he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) (see Section 1: Personal Information (H) of the Notice of Appeal).

16.  After the Board made its decision on 5 August 2015, it seems from the covering letter of the same date from the Board which accompanied the decision that it was sent to the Applicant at an address in Tsim Sha Tsui in Kowloon. It is however not clear whether the Applicant had by then already been released from CIC on recognizance and had therefore moved to that address, or that the Board had mistakenly sent the decision to a former address where the Applicant no longer resided instead of to CIC where he might still be detained, and hence the decision never reached him as he so claimed until much later after his release on recognizance that he was only informed by his immigration officer as alleged.

17.  The onus is however clearly on the Applicant to prove that the decision did not in fact reach him through no fault of his including without any failure on his part to inform the authorities of any change of his address as soon as practicable, and in the absence of any further details or evidence provided by him to corroborate his assertions, I am not satisfied that he has discharged the burden.

18.  Furthermore, as it has been held by the Court of Final Appeal in H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22, FACV 1/2020 and FACV 2/2020 heard together, whenever there is a failure to act either promptly or within three months as required by Order 53 r 4(1) of the High Court Ordinance, there is “undue delay” in the making of the application for judicial review, and that depending on the context, a failure to challenge a particular administrative decision even in a shorter period than three months might constitute undue delay for not having been made “promptly” ([37(1)] of the decision).

19.  The context in the present case is for the Applicant to challenge the Board’s decision in refusing to allow the late filing of his Notice of Appeal which would otherwise be to commence the second tier of the screening process of his non-refoulement claim under the Unified Screening Mechanism (“USM”), which would to him be plainly one of momentous importance, and hence even if he indeed without fault had never received the Board’s decision as alleged, by the time when he received the Director’s Further Decision of 7 February 2017 which was sent on the same day to the same Tsim Sha Tsui address, the Applicant would have known by then, at the very least, that his appeal to the Board had been rejected on 5 August 2015, as the Director so stated in paragraph 2 of his Further Decision, and that the Applicant could have then filed his Form 86 for his present leave application instead of waiting for another 20 months until 29 November 2018 to do so. As such and for the reasons given, I am not satisfied that the Applicant has provided any good or valid reason for his such serious undue delay.

20.  As for the merits of his intended application, which is to review and challenge the Board’s decision in refusing the last filing of his Notice of Appeal, and while it seems unreasonably harsh to me that the Board refused to accept his explanation for his delay of just one day under the circumstances including his detention at CIC and being unrepresented, the fact is that the Board did also take into account of the merits of his claim and appeal, and in my view correctly found that there is no merit in his intended application as the prospect of success is extremely slim.

21.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

22.  Furthermore, in the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a finding which the Board could not find fault in, there is simply no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

23.  In the premises and having considered 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.”

Application for extension of time to appeal the JR Decision

17.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 12 October 2021 for an extension of time to appeal.  That was dismissed by the Judge on 4 May 2022.  Hence, the Summons to this court. 

Discussion

18.  In considering whether to extend time for appealing, the Court will have regard to: (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 putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

19.  As for (1), the applicant was late by 4 weeks between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance, and again he was late in filing the present summons.   

20.  As for (2), the reasons for the delay, the applicant failed to provide any explanation for his delay.  He said to the Judge during the hearing that he was not aware of the rules and had to find someone to help him with his application, but by then he was already out of time with his intended appeal.  Ignorance of the law is not an excuse for the substantial delay. 

21.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not put forth any proper or valid proposed grounds of appeal and there is no prospect of success in his intended appeal from the Judge’s carefully considered judgment.

22.  As rightly pointed out by the Judge at [20] of the JR Decision, although the Board was harsh in rejecting the late filing of the notice of appeal for the minimal delay of 1 day, the Board nonetheless had also considered the Director’s 1^st Decision and the merits of the applicant’s claim and was of the view that there is no merit in the applicant’s intended application.      

23.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we agree with the Judge that the applicant’s delay of more than 3 years in taking out his application for leave to apply for judicial review of the Board’s decision was serious and inordinate and that the applicant’s complaints are not reasonably arguable and leave for judicial review should be refused.

24.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 17 June 2022.