RE PATEL SAMIR GULAB

CAMP 122/2021

[2022] HKCA 1016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 122 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1864 OF 2018)

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J U D G M E N T

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

1.  On 24 May 2022, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Chu and Au JJA)  judgment of 10 January 2022 (“the Judgment”)  ([2022] HKCA 12). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 24 June 2020, refusing his application for leave to apply for judicial review (“the Leave Decision”)  ([2020] HKCFI 1284).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.  Pursuant to section 24(2)  of the HKCFAO, an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the deadline for the applicant to seek leave to appeal against the Judgment fell on 7 February 2022.  Accordingly, the applicant was over 3.5 months late in taking out his application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad[2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another[2021] HKCA 83 at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant stated:

“I would like to inform to Court of Final Appeal. The Immigration Department had unlawfully fettered his discretion by refusing my claim on the grounds that they did not satisfy the requirement. The Adjudicator acted in a procedurally unfair manner in dealing with my appeal.” (sic)

7.  In his supporting affirmation, the applicant stated:

“Affirmation for leave to apply for my Notice of Motion time extension against the Order of High Court on 10-Jan-2022. Seeking time extension I did not aware of my deadline to lodge my Notice of Motion.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 6 June 2022.  In those submissions, he complained that he was not provided with language assistance in relation to his BOR2 assessment and that the non-refoulement claim process lacked sound judgment and fairness throughout. It is noted that these allegations are vague and general and the applicant failed to provide specific particulars in support of his contentions.

9.  At the outset, the applicant’s delay of over 3.5 months was very substantial and he failed to provide any good reason or evidence in support for his delay.  Mere ignorance of the deadline as asserted is not a good reason for the delay.

10.  More importantly, the matters raised in his Notice of Motion and written submissions are all vague and bare allegations without specific particulars or evidence in support.  Moreover, all his accusations are directed at the Torture Claims Appeal Board / Non-refoulement Claims Petition Office and the Director of Immigration and did not identify any error in the Judgment.  As such, they simply do not constitute viable grounds of appeal and his intended appeal must fail on this basis alone.

11.  As to his contention regarding the lack of language assistance, we have already considered and rejected the same at [22] of the Judgment.  The applicant did not identify any error in the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3]. 

12.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

13.  Accordingly, he failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

14.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 24 May 2022 is dismissed.

The applicant acting in person

CAMP 122/2021

[2022] HKCA 12

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 122 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1864 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  By a summons dated 21 April 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 25 March 2021 refusing the applicant’s application for an extension of time to appeal ([2021] HKCFI 719)  (“EOT Decision”)  against the Deputy Judge’s previous order dated 24 June 2020, by which the Deputy Judge dismissed his application for leave to apply for judicial review ([2020] HKCFI 1284)  (“Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 6 August 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 20 October 2015 and 12 June 2017 rejecting his claim for non-refoulement protection (collectively “the Director’s Decisions”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of India.  He entered Hong Kong as a visitor on 15 January 2010 and was allowed to stay until 29 January 2010.  He surrendered himself to the police on 31 January 2010 and was referred to the Immigration Department on 1 February 2010.  He subsequently lodged a non-refoulement claim on 2 February 2010 on the basis that if refouled, he would be harmed or killed by a gangster who had physical relationship with his wife, Sarita, and who also wanted the applicant’s father’s property.  The applicant also alleged that he was afraid of the Indian Police as they arrested him for being in joint enterprise with three others for kidnapping and raping Sarita.  Details of the applicant’s claim were summarised by the Deputy Judge at [4] - [6] of the Leave Decision.

5.  By a Notice of Decision dated 20 October 2015, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR3 risk[2], and persecution risk[3].

6.  By a Notice of Further Decision dated 12 June 2017, the Director rejected the applicant’s non-refoulement claim on the basis of BOR 2 risk[4].

7.  On 3 November 2015, the applicant appealed against the Director’s Decisions to the Board.  He attended an oral hearing before the Board on 13 July 2018 and gave evidence.  The Board dismissed his appeal on 6 August 2018 and confirmed the Director’s Decisions.  The Board found on the evidence that the applicant had never suffered any assault or injury or serious ill-treatment or harm from his enemy as alleged.  Having assessed the evidence, the Board also considered that internal relocation would be reasonable and available and the applicant failed to establish his claim on all applicable grounds.

The Leave Decision

8.  On 6 September 2018, the applicant filed a Form 86 with a supporting affirmation for leave to apply for judicial review against the Board’s Decision.  In his supporting affirmation, he only stated he could not go back to India because his case was genuine and that he had provided legal documents that he had problems in India.  The applicant appeared in person at the hearing of the leave application before the Deputy Judge on 23 January 2020.  A Hindi interpreter was present to provide language assistance.

9.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“14.  The applicant appeared before me. He confirmed that he was treated fairly when he before the immigration officer and the Adjudicator of the Board. The duty lawyer had explained the Director’s Decisions to him and he could read the Board’s Decision himself. He had no comments on the Board’s findings.

15.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.

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

CONCLUSION

18.  I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.”

The EOT Decision

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 7 January 2021, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was almost six months late with his intended appeal. In his supporting affirmation of the same date, he only asserted he did not know the Court procedures and did not know English as well.

12.  By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal.  The Deputy Judge considered that the grounds for his application for extension of time to appeal were not valid and that the applicant was unable to show any reasonable prospect of success in his intended appeal against the Leave Decision.  The Deputy Judge refused to extend time for his intended appeal and dismissed the EOT Summons.

The Present Application

13.  By a summons dated 21 April 2021, the applicant applied for leave to appeal against the EOT Decision.  In his supporting affirmation of the same date, he stated:

“Affirmation for Leave to file Summons for my Further appeal against the Order of COURT on 25-March-2021. Seeking Further appeal for my claim from COURT of Appeal. I am not aware of COURT deadline and COURT Procedure as well because of my language handicap.” [sic]

14.  In his written submissions lodged on 8 June 2021, the applicant contended that:

(1)  the Board was in breach of procedural fairness and had fettered his discretion by refusing his appeal and had acted in a procedurally unfair manner in dealing with his appeal (“Ground 1”);

(2)  the Board’s Decision to refuse his appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness (“Ground 2”);

(3)  the Board failed to meet the greater care and duty owed to a self-represented claimant (“Ground 3”);

(4)  owing to his limited English skills, there was insufficient time for him to prepare for the hearing and he was confused in terms of what was happening as the documents in the hearing bundle before the Board were in English and he could not hire an interpreter (“Ground 4”); and

(5)  the Board had significantly relied on the source of news which was not officially recognised or was simply hearsay or was fairly outdated (“Ground 5”).

Discussion

15.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif[2019] HKCA 299 at [13].

17.  We consider that the applicant’s delay of almost six months as very substantial and the applicant has failed to provide any cogent explanation for his delay.  Ignorance of the law on the part of the applicant is not a reasonable excuse for his substantial delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz[2021] HKCA 636 at [15]; Re Ansar Muhammad[2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

18.  In assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration[2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib[2020] HKCA 408 at [28].

19.  As a start, it is noted that his complaints are directed at the Board and the applicant failed to point out any error made by the Deputy Judge in the Leave Decision. As such, they are not proper grounds of appeal and the intended appeal must fail on this basis alone.

20.  In any event, the applicant’s arguments are without any merit and cannot stand.

21.  In relation to Grounds 1, 2, 3 and 5, these grounds are all general and bare assertions without any specific particulars or how they are relevant to the applicant’s case.  They are not viable grounds of appeal.  It is also pertinent to note that these grounds are all new and not raised before the Deputy Judge.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below: Re Qadir Sher[2018] HKCA 160 at [11].  Therefore, this Court will not entertain these new grounds.

22.  As to Ground 4, it is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see Cucun Fatimah v Torture Claims Appeal Board[2019] HKCA 1264 at [20].  In any event, the Court documents filed in this application and in the Court below were all in English. It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  It is therefore clear that the applicant was not in any way prejudiced.

23.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time. The application for extension of time to appeal is therefore refused and the summons dated 21 April 2021 dismissed.

The applicant acting in person