Case Detail

HCAL 1898/2018

[2020] HKCFI 2442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1898 OF 2018

_____________

RE:

Mitra Joy Kumar

Applicant

_____________

Before: Deputy High Court Judge C P Pang in Chambers

Date of Decision: 29 September 2020

_____________

D E C I S I O N

_____________

1. On 29 June 2020 Deputy High Court Judge Lung (“the Judge”) refused to extend time for the applicant to file his late application for leave to apply for judicial review (“the Judge’s decision”) of the decision of the Torture Claims Appeal Board (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s non-refoulement claim. At the same time, the Judge gave a direction (“the Judge’s direction”) that “if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal” (emphasis added). The Judge’s direction followed the judgment of the Court of Appeal in MI & IYW v Permanent Secretary for Security [2018] 4 HKC 440.

2. In compliance with the Judge’s direction, the applicant by a summons issued on 7 July 2020 sought leave to appeal against the Judge’s decision.

3. The Court of Final Appeal held in the recent case of H v Director of Immigration and AH v Director of Immigration, FACV 1 & 2 of 2020, [2020] HKCFA 22 given on 14 July 2020 that an application for extension of time in order to apply for leave to commence judicial review is not a discrete application, separate from the application for such leave [39]. An applicant does not need leave under Section 14AA High Court Ordinance to appeal to the Court of Appeal in respect of a refusal of extension of time to bring an application for leave to judicial review [53].

4. Following the CFA’s decision, the Judge’s decision should be properly considered as a refusal of leave to commence judicial review. The Judge’s refusal of extension of time did not need leave to appeal to the Court of Appeal. The applicant could appeal from the Judge’s decision as of right within 14 days of his order: Order 53 r.3(4) RHC. In other words, the correct procedure was that the applicant should have lodged his appeal from the Judge’s decision by way of Notice of Appeal on or before 13 July 2020, instead of following the Judge’s direction and applying for leave to appeal.

5. Complying with the Judge’s direction, the applicant did on 7 July 2020 apply to the Judge by summons for leave to appeal. In fact, by then he would have been in time to file a Notice of Appeal had he followed the proper procedure instead of the Judge’s direction. However, the notice to be filed now will be out of the 14-day period and the applicant needs an extension of time to bring an appeal to the Court of Appeal.

6. In all the circumstances, I consider it appropriate to treat the applicant’s summons for leave to appeal as a summons to extend time to file a Notice of Appeal and determine it without a hearing. I will grant the application extending the time for 14 days from this order for him to file his Notice of Appeal.

	(C P Pang)
	Deputy High Court Judge

The applicant acted in person

HCAL 1898/2018

[2020] HKCFI 1397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1898 of 2018

BETWEEN

	Mitra Joy Kumar	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 17 April 2018 be refused; and
(2) Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and
(5) Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2. The applicant asked for a hearing. He attended the hearing.

The applicant

3. The applicant is an Indian national. He had come to Hong Kong before and lodged a torture claim on 17 June 2008. He withdrew his claim on 8 September 2010. He lodged another torture claim on 12 May 2011, which was rejected on 11 August 2011. He came to Hong Kong illegally on 7 June 2016. He surrendered to the Immigration Department and made his non-refoulement claim on 8 July 2016.

4. He claimed that if refouled, he would be harmed or killed by members of the Communist Party of India (Maxist) (the “CPIM”) for reasons arising from a political dispute.

5. He joined the The All India Trinamool Congress (“TMC”) in 2000 or 2001. TMC was a rival party with CPIM. Between 2007 April and 2015, he was attacked by members of CPIM for four times and they also threatened him by phone. In the first attack in 2001, he was assaulted by 10-12 members of CPIM. He sustained a fracture in his left forearm. A steel plate was inserted which remains. He was hospitalized for 22 days. He did not report the attack to police. He believed that that police would not be interested. The second attacked took place in January 2011 whilst he was on his way to the doctor for chickenpox treatment. He was attacked by 7-8 people. On 7 April 2011, he was attacked by six people. In the 4^th attack, he was beaten up by 12-15 people. His middle finger was cut by a broken bottle and his right wrist was slashed. He continued receiving threatening calls after the 4^th attack. He then came to Hong Kong.

The Director’s Decision

6. The Director considered his application in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“theOrdinance”) (“Torturerisk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“RefugeeConvention”) (“Persecutionrisk”).

7. By Notice of Decision dated 25 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground to believe that he would be harmed or killed by his opponents upon his return to India [16]; that state protection would be available to him [17] and that relocation was an option open to him [18], and that he was unable to establish BOR 2 risk [24].

The Board’s Decision

8. The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 7 and 9 November 2017 respectively.

9. By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

10. The Board considered the applicant’s evidence and found that the applicant was not a good witness. He was evasive and his answers were self-contradictory. He failed to answer the questions [32]. On the second day, he insisted that he would not answer the Board’s questions and asked the Board to make decision on that basis, despite the fact that the Board told him that there were inconsistencies in his evidence and it wanted his clarification [33]. The Board finally came to a conclusion that his case was not borne out by the evidence [36]. See the detailed analyses in paragraphs 39-96. The Board also found that there would be state protection for him [122]. Also, internal relocation was an option open to him [127].

Application for leave to apply for judicial review

11. The applicant filed Form 86 on 11 September 2018 for leave to apply for judicial review of the Board’s Decision.

12. In his affirmation in support of his application, he said he would be in danger if he was sent back to his country.

DISCUSSION

13. His application is beyond 3 months from the date of the Board’s Decision. This court has to consider the merits of his intended judicial review in order to determine whether time should be extended for him to make this application.

14. He appeared before the Court and confirmed that the interview before the immigration officer and the Board were fair and he was free to give evidence. His lawyer had explained the Director’s Decision to him. He had no comments on the Board’s findings above.

15. There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

16. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

17. I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review. Accordingly, I dismiss his application.

18. It is further directed that:

a. If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
b. When filing the application for leave to appeal, the applicantmust at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
c. The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
d. If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and
e. Liberty to apply.

Dated the 29^th day of June 2020

	(Mike Mak)
	for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notesfor the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 29/6/2020 Mitra Joy Kumar Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6153/17/2/152/IN1254 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2169/16 (formerly RBCZ/12525/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

RE MITRA JOY KUMAR

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