CAMP 256/2021
[2021] HKCA 1610
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 256 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO. 687 OF 2018)
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BETWEEN
| JAGSIR SINGH | Applicant |
| and | |
| TORTURE CLAIMS APPEAL BOARD | 1st Putative
Respondent |
| DIRECTOR OF IMMIGRATION | 2nd Putative
Respondent |
________________________
Before: Hon G Lam and Chow JJA in Court
Date of Written Submission: 27 July 2021
Date of Judgment: 8 November 2021
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. By summons dated 16 July 2021, the Applicant applied to this Court for an extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 26 March 2021 refusing to grant leave to apply for judicial review.
2. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.
BACKGROUND
3. The Applicant is a national of India. He last arrived in Hong Kong as visitor with permission to remain up to 21 November 2013. He overstayed. On 3 March 2014, he surrendered to the Immigration Department and raised a non-refoulement claim. In essence, his claim is based on an alleged fear that, if he returned to India, he would be harmed or killed by a local leader of a rival political party called Shiromani Akali Dal. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.
4. By a Notice of Decision dated 4 July 2014, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim based on risk of torture,[1] BOR 3 risk,[2] and persecution risk[3] (“the Director’s Decision”).
5. On 15 July 2014, the Applicant appealed the Director’s Decision to the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”). On 30 January 2015, the Board rejected the appeal. In its decision, the Board found serious inconsistencies and discrepancies between the information earlier provided by the Applicant to the Director and his evidence given during his appeal hearing which the Board concluded was wholly unreliable. The Board considered that in the absence of evidence of any state or official involvement, state/police protection would be available to the Applicant upon his return to India. The Board also considered that reasonable internal relocation was a viable option open to the Applicant to move safely to other areas of India away from his home district.
6. On 20 December 2016, the Director on his own initiative invited the Applicant to submit additional facts which might be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under BOR 2.[4] In the absence of any response from the Applicant, by a Notice of Further Decision dated 5 January 2017, the Director rejected the Applicant’s non-refoulement claim based on BOR 2 risk (“the Director’s Further Decision”).
7. On 10 February 2017, the Applicant appealed the Director’s Further Decision to the Board outside of the prescribed 14-day period for appeal. On 12 April 2018, the Board rejected the Applicant’s late filing of his appeal against the Director’s Further Decision (“the Board’s Further Decision”).
8. On 20 April 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of both the Director and the Board’s Further Decisions. In his supporting affirmation, the Applicant complained about 3 matters: (i) lack of legal representation in the relation to the assessment of BOR 2 risk by the Director and in his appeal before the Board, (ii) lack of language assistance, and (iii) failure of the Board to conduct an oral hearing. In his decision dated 26 March 2021, the Judge duly considered and rejected those complaints, and refused to grant leave to the Applicant to apply for judicial review (see Form CALL-1 at §24).
THE JUDGE’S EXTENSION DECISION
9. Under Order 53, Rule 3(4) of the RHC, the Applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. No notice of appeal was filed against the Judge’s order of 26 March 2021 within the 14-day period. On 14 April 2021, the Applicant filed a summons seeking extension of time to appeal.
10. The Judge considered that while the delay of 5 days in this case was not significant, the Applicant had failed to provide any good explanation for his delay (see [2021] HKCFI 1852 at §§4-5). The Judge also considered the merits of the Applicant’s intended appeal and found that the Applicant did not advance any valid grounds of appeal. The Judge considered that in the absence of any error in his earlier decision being clearly and properly identified by the Applicant, there was no prospect of success in his intended appeal (§6).
11. Accordingly, on 6 July 2021, the Judge refused to extend time for the Applicant to appeal, and dismissed his summons of 14 April 2021.
THIS APPLICATION
12. In his summons and supporting affirmation dated 16 July 2021, the Applicant stated that he was late in his appeal due to a lack of knowledge and insufficient resources.
13. In his written submissions dated 27 July 2021, the Applicant repeated his fears if refouled. He stated that he was not satisfied with the Board’s Decision as they ignored many things relating to his case.
DISCUSSION
14. In considering whether to extend time for appeal, the Court will take into account the length of the delay, the reasons for the delay, the merits of the intended appeal, and the degree of prejudice to the other party if an extension of time is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success in the intended appeal, not merely a reasonable prospect of success: see Tang Chai On v Tang Sing Ki (supra) at §9.
15. The prospect of success of the intended appeal is important: the court will not extend time for a hopeless appeal to be pursued, see Re Adumekwe Rowland Ejike[2019] HKCA 702 at §19.
16. The court’s approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.
17. We agree with the Judge that the delay of 5 days in this case is not substantial, and thus the focus should be on the merits of the intended appeal.
18. The Applicant has not pointed to any errors in the Judge’s decision dated 26 March 2021, or raised any viable grounds of appeal against the Judge’s decision in his summons, supporting affirmation, or written submissions. The Applicant’s intended appeal has no merits, or reasonable prospect of success.
DISPOSITION
19. Accordingly, the Applicant’s application for extension of time to appeal is refused, and the Applicant’s summons of 16 July 2021 is dismissed.
| (Godfrey Lam) | (Anderson Chow) |
| Justice of Appeal | Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.