KPS v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 62/2016

[2020] HKCFI 830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 62 OF 2016

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D E C I S I O N

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I. INTRODUCTION

1.  By a Judgment handed down on 5 March 2018 (“Judgment”), I refused to grant leave for the applicant (“KPS”) to apply for judicial review of the decisions of the Director of Immigration (“DOI”) and the adjudicator of the Torture Claims Appeal Board (“Adjudicator”) in rejecting / dismissing his non-refoulement claim and subsequent petition / appeal upon finding that none of the grounds KPS put forward[1] was reasonably arguable, that there was no error of law or procedural unfairness in their decisions, and that there was no realistic prospect of success in his intended application. For easy reference, I adopt the abbreviations in the Judgment.

2.  On 13 January 2020, KPS filed a summons (“Leave Summons”) for leave to appeal against the Judgment out of time (as the 14-day period for him to lodge his appeal under Order 53 rule 3(4) of the Rules of the High Court Cap 4A (“RHC”) expired on 19 March 2018), so KPS was out of time by some 1 year and 9 months.

3.  On the same day, KPS filed his affirmation in support of the Leave Summons (“KPS 2^nd Aff”). I summarise the grounds set out in the KPS 2^nd Aff as follows:

(1)  The delay in lodging the appeal against the Judgment was due to language problem, financial hardship and unawareness of court procedure.

(2)  It was unfair that the judge never heard KPS in person.

(3)  KPS was not provided with legal representation for assessment of the risk under BOR 2 (“BOR 2 Risk”)[2]. Although KPS would not assert he was entitled to legal representation, the high standard of fairness laid down by legal authorities of the court “were directed towards legal representation for the assessment before the [DOI]”.

(4)  The further decision by the DOI was made without ensuring that KPS was aware of his rights “and for the definitions” behind article 2 of the Hong Kong Bill of Rights (“BOR 2”).

(5)  The lack of language assistance and legal representation meant KPS had no understanding of the process or reason for rejecting his non-refoulement claim. To date, Adjudicator’s decision had not been made known to him via interpretation.

(6)  The court and the authorities had been negligent and failed to satisfy the requisite standard of care towards non-refoulement claimants like KPS (and he would not be the only one who did not understand the English language and court procedures), who have been disadvantaged and discriminated against because of this.

(7)  The discriminatory acts of the authorities towards non- refoulement claimants like KPS in not taking their handicap into account and merely had quick disposal of non-refoulement claims was unacceptable and detrimental to the judicial system.

II.  LEGAL PRINCIPLES

4.  Order 59 rule 15 of the RHC empowers the court to grant extension of time for filing a notice of appeal. In considering whether to extend time for appeal against a decision refusing leave to apply for judicial review, the court will have regard to (a) the length of the delay, (b) the reasons for the delay, (c) the prospect of success of the intended appeal, and (d) the prejudice to the respondent if extension of time were granted.[3]

5.  Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, and not merely a reasonable prospect of success.[4] The prospect of success of the intended appeal is important as the court will not grant time extension for a hopeless appeal to be pursued.[5]

6.  The general approach in dealing with non-refoulement claims on appeal is set out in Nupur Mst v Director of Immigration,[6] Chy MD Fayej Ahamad v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office & anor,[7] and Halim Abdul v Kay Ransone Esq & anor,[8] which I adopt but shall not repeat here.

III.  DISCUSSION

7.  In KPS’ case, he took about 1 year and 9 months to bring an appeal against the Judgment that refused to grant him leave to apply for judicial review. In my view, the delay was inordinate and substantial.

8.  KPS tried to explain away such delay by reason of language problem, financial hardship and unawareness of court procedures. But KPS did not say exactly when and how he came to understand the Judgment. Having received the Judgment, which clearly must be a document from the court, it was incumbent on KPS to find out what it was about. But even accepting that KPS might not have fully understood what the Judgment was about upon receipt of such document, he must have sought and obtained help in order to take out the Leave Summons and make the KPS 2^nd Aff. He did not say when he sought such help to understand the Judgment. But the fact was that, quite irrespective of language / financial issues and any non-understanding of court procedure, KPS under his recognizance was required to report to the Immigration Department every other week, so it was not acceptable that he waited for more than 1½ years to find help for preparation of the present application. I am not satisfied KPS provided good reason for the delay.

9.  Turning to the prospects of success of the intended appeal, which is a crucial factor in determining whether or not the court should exercise its discretion to grant extension of time for appeal, I am not satisfied that the grounds put forward by KPS had any merits.

10.  First, I reject KPS’ claim that I had not heard him in person. There was an oral hearing for KPS’ application for leave to appeal on 9 September 2016, and I heard his oral submissions made via an interpreter. In fact, there was an earlier oral hearing before this court on 16 August 2016 during which I granted orders in relation to the amendment of the Form 86 (see paragraph 33 of the Judgment). I note KPS was legally represented by the DLS when his non-refoulement application was assessed by the DOI, and he was also legally represented by the DLS at the oral Hearing before the Adjudicator (see paragraph 18 of the Judgment).

11.  Secondly, KPS’ grounds in paragraph 3(3)-(4) above concerned improper assessment of his BOR 2 Risk. However, by the DOI Decision, the DOI assessed KPS’ claim on the applicable grounds under the USM then in place, ie Torture Risk,[9] BOR3 Risk[10] and Persecution Risk,[11] but not the BOR 2 Risk (see paragraph 17 of the Judgment). Likewise, the decision of the Adjudicator dated 14 March 2016 (“Adjudicator Decision”) was confined to considerations of the Torture Risk, BOR3 Risk and Persecution Risk. In short, the BOR 2 Risk was not the subject matter of the DOI Decision and/or the Adjudicator Decision.

12.  An appeal is not a fresh application. This court’s function in respect of the Leave Summons was to examine if there were any merits in the contention that I had erred in my decision in the Judgment. If KPS had no arguably meritorious ground to challenge the Judgment, he could not bring an appeal on the basis that he was dissatisfied with any subsequent assessment / decision of the BOR 2 Risk by the DOI. Such dissatisfaction would have to be the subject of a separate application for leave to apply for judicial review (if there were sufficient grounds and if it was made within time), but it would not amount to any arguable challenge against the DOI / Adjudicator Decisions and/or the Judgment. Any complaint of lack of language assistance and/or legal representation for assessment of KPS’ BOR 2 Risk would be irrelevant.

13.  Thirdly, as regards the grounds in paragraph 3(5)-(7) above, ie that KPS had no understanding of the decision of the Adjudicator because of language issue and lack of legal representation, I am not persuaded such ground had any arguable merits.

14.  It is beyond dispute that legal representation and language assistance were provided when KPS completed the Non-refoulement Claim Forms, during the interview with the immigration officer, and when he completed his Notice of Appeal/Petition Non-refoulement Claim. He was also assisted by an interpreter when he appeared before the Adjudicator (when he testified and gave evidence) and before this court (when he made submissions). In any event, the Court of Appeal has repeatedly held that the high standard of fairness required by law would not entail interpretation and/or legal representation service being made available at any time the applicant desires.[12]

15.  Further, the Leave Summons and KPS 2^nd Aff were written in English, like all documents that KPS placed before this court for his application for leave to seek judicial review, eg the Form 86, the Amended Form 86 and the KPS Aff. For his application under the Form 86 and the Amended Form 86, there was no complaint over interpretation before the DOI and the Adjudicator. In any event, KPS was able to proceed with all his documents in English. By the English Form 86 and the English Amended Form 86, KPS was able to put forward detailed grounds to challenge the DOI and Adjudicator Decisions, and he even filed the KPS Aff in English in support thereof. KPS could not have done so without understanding of the Adjudicator Decision. Further, he did not pinpoint any inaccuracy in his Non-refoulement Claim Forms, his Notice of Appeal/Petition Non-refoulement Claim, his Form 86 and/or his Amended Form 86. All these indicated that either KPS was conversant with the English language or he was able to have access to language assistance if needed. I do not accept the assertion that the alleged lack of language assistance would render the process unfair. There was no merit in the complaint of lack of language assistance.

16.  As regards legal representation, as explained in paragraph 10 above, KPS was legally represented when interviewed by the DOI and at the hearing before the Adjudicator. Further, KPS was able to put forward detailed grounds in the Form 86 and Amended Form 86. He did not say what other grounds/points had been omitted in his challenge against the DOI and Adjudicator Decisions. There was no merit to the complaint that he had been disadvantaged and/or discriminated.

17.  As regards the ground in paragraph 3(7) above, KPS complained that the DOI/Adjudicator and this court discriminated against him by mere quick disposal of his non-refoulement claim. However, I note that both the DOI and Adjudicator Decisions (summarised in paragraphs 20-23 and 24-30 of the Judgment) gave detailed account of KPS’ claim and their reasons for finding against KPS. KPS made his non-refoulement claim on 13 December 2007 and was interviewed by the DOI on 27 November 2014. The DOI Decision dated 22 December 2014 could not be said to be overly quick disposal. KPS then appealed / petitioned against the DOI Decision on 5 January 2015. The oral Hearing before the Adjudicator was held on 18 May 2015, and the Adjudicator rendered his decision on 16 March 2016. Again, it was not an overly quick disposal. Likewise, this court took time to consider KPS’ case and there was no unreasonably quick disposal of KPS’ application for leave to seek judicial review as he alleged.

18.  For the above reasons, I am unable to see any prospect of success in KPS’s intended appeal. In the premises, it would be futile to extend time for such intended appeal. Accordingly, I refuse KPS’ application for leave to appeal out of time, and the Leave Summons is dismissed.