RE RAVINDER KUMAR

CAMP 180/2021

[2022] HKCA 114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 180 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 283 OF 2017)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 29 September 2017, Deputy High Court Judge Woodcock refused the applicant’s application for leave to seek judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim.

2.  On 1 February 2021, the applicant filed a summons for extension of time to appeal against the said decision. On 12 May 2021, Deputy High Court Judge K W Lung refused to grant extension of time to the applicant as there is no reasonable prospect of success in his intended appeal[1].

3.  On 20 May 2021, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4.  The applicant is a national of India. He is 28 years old. He came to Hong Kong on 22 May 2014 as a visitor and subsequently overstayed. He was arrested by the police on 8 June 2014 and lodged a non-refoulement claim on 10 June 2014. His claim was made on the basis that he will be harmed or killed by Sarabjit Singh and his men because of the applicant’s support for his friend who was embroiled in a land dispute with Sarabjit Singh.

5.  By a Notice of Decision dated 11 March 2016, the Director rejected the applicant’s non-refoulement claim on torture risk[2], BOR 3 risk[3] and persecution risk[4].

6.  By a Notice of Further Decision dated 17 March 2017, the Director rejected his claim on BOR 2 risk[5] in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claims.

7.  The applicant appealed against the Director’s decisions to the Board. The applicant attended the hearing before the Board on 7 April 2017. The Board did not accept that the applicant would face real risk of harm from Sarabjit Singh if he is refouled. The Board considered that the frequency of past alleged assaults is low and the applicant is only remotely related to the land dispute between his friend and Sarabjit. The Board further considered there is no reliable evidence to show that the alleged acts of torture had inflicted on the applicant pain or suffering of the prerequisite severity. The applicant’s problem with Sarabjit Singh is private in nature and there is no reliable evidence which shows that Sarabjit Singh or his family were public officials and/or persons acting in an official capacity. In addition, the Board also considered that the availability of state protection and internal relocation alternative further lowers or negates the perceived risk. Therefore, the Board dismissed the appeal on 22 May 2017.

The judge’s decision

8.  On 13 June 2017, the applicant applied for leave to apply for judicial review against the decisions of the Director and the Board. He put forward the following grounds for his intended judicial review:

(1)  lack of legal representation;

(2)  lack of language assistance; and

(3)  no reasoning given for rejecting his claim.

9.  The applicant attended the hearing before DHCJ Woodcock on 29 August 2017. The judge rejected his first ground as the applicant had legal representation in the claim process before the Director and there is nothing to show that there is procedural unfairness when the applicant did not get legal representation on appeal while free legal representation will only be provided for meritorious appeal cases. Ground 2 was rejected as the judge observed that the applicant had not raised such complaint to the Board and had not sought language assistance from the Immigration Department when he received the English letter from them. Furthermore, the judge held that there is nothing to show that the Director or the Board had made any error of law and there is no evidence of procedural unfairness or failure to adhere to high standard of fairness. Thus, the judge found that the applicant’s claim is not reasonably arguable and dismissed the leave application on 29 September 2017.

Grounds of appeal

10.  The applicant stated his grounds of appeal in his written submissions which may be summarized as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(2)  The decision maker is under a duty to act fairly.

Analysis and disposition

11.  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 the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.  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 29 September 2017. The applicant took out summons in the court below on 1 February 2021. He was late for more than 3 years. The delay is very substantial.

13.  The applicant explained that he was late because he had not received the court’s judgment and order within time. According to the record, the Court sent the decision by post on the day when the decision was handed on 29 September 2017 to the applicant’s last known address which was stated in his Form 86 and confirmed by him at the hearing on 29 August 2017. The mail has not been returned by the post office. The applicant has the duty 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). Under these circumstances, and considering the substantial delay of over 3 years, the applicant’s explanation for the delay is not justifiable.

14.  As the applicant’s delay is inexcusable, he must show a real prospect of success on the merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

15.  In assessing the merit 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.

16.  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 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.

17.  In the present case, the applicant did not put forward any arguable grounds against the judge’s decision. He has not demonstrated that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to grant extension of time to appeal against the judge’s decision of 29 September 2017 and dismiss the summons for extension of time filed on 20 May 2021.