Case Detail

CAMP 410/2022, [2023] HKCA 1074

On appeal from [2022] HKCFI 857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 410 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 430 OF 2019)

________________________

BETWEEN
	Lakhbir	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Written Submissions:	4 April 2023
Date of Judgment:	20 September 2023

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 17 March 2023 ([2023] HKCA 364). The Court of Appeal refused to grant extension of time to appeal against the decision of Campbell-Moffat J dated 29 March 2022 dismissing the application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 4 April 2023. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of India. He entered Hong Kong on 14 July 2015 as a visitor but was refused permission to land. He then raised a non-refoulement claim on the same day on the basis that he would be killed or harmed by one Ashok Kumar and/or his associates, as Mr Kumar’s daughter had eloped with the applicant’s friend.

4. He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 29 August 2022[1].

5. On 5 October 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed by the Court of Appeal on 17 March 2023 as he failed to show any prospect of success in his intended appeal.

Grounds of appeal

6. The grounds of appeal in the Notice of Motion filed on 21 March 2023 may be summarized as follows:

(1)  The judges erred in determining that the judge below had not failed to appreciate the significance of the applicant’s non-refoulement claim. The lack of assistance provided to the applicant is an error of law or procedure, evidence of procedural unfairness or failure to adhere to a high standard of fairness. Non-refoulement claims are life and limb cases which should be assessed with caution, considering the applicant’s vulnerability and disadvantage;
(2)  The authorities have not made reasonable arrangements to enable the applicant to understand the judgment so he was deprived of the right to seek further avenues of appeal;
(3)  The judgment was lacking in evidential consideration of issues raised in the court;
(4)  He did not request for an oral hearing upon submitting Form 86 because he was not aware that he had to request for an oral hearing while he was not provided with any legal or language assistance;
(5)  The prospect of success should not be determined by the judges at this stage as the applicant has been deprived of the right to put forward his grounds because he was not able to elaborate all the errors of the Director and the adjudicator without legal or language assistance.

7. In his written submissions, he clarified that his complaint against the lack of legal representation is about the appeal before the Board and the issuance of the Notice of Decision by the Immigration Department. He also reiterated the problems concerning the lack of legal and language assistance.

Analysis and disposition

8. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

9. The Court of Appeal has already dealt with the grounds concerning the lack of legal and language assistance in the judgment dated 17 March 2023. The applicant does not have any viable grounds to show that the Court of Appeal was wrong in its decision. Besides, the applicant’s ground on the lack of evidential consideration of issues raised is not supported by any particulars or evidence. In addition, the applicant failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

10. For all the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 21 March 2023.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 2686

CAMP 410/2022

[2023] HKCA 364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 410 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 430 OF 2019)

________________________

BETWEEN
	Lakhbir	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Written Submissions:	19 October 2022
Date of Judgment:	17 March 2023

________________________

J U D G M E N T

________________________

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

1. On 29 March 2022, Campbell-Moffat J refused the applicant’s application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2. On 29 August 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show that he has any reasonable prospect of success in his intended appeal[2].

3. On 5 October 2022, the applicant filed the present summons with the Court of Appeal to appeal against the decision of the judge dated 29 August 2022. In light of the decision Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 29 March 2022.

4. The applicant is a national of India. He is 35 years old. On 14 July 2015, the applicant entered Hong Kong as a visitor but was refused permission to land. He then raised a non-refoulement claim by way of written representation on the same day on the basis that he would be killed or harmed by one Ashok Kumar and/or his associates as Mr Kumar’s daughter, Katrena, had eloped with the applicant’s friend, Raj.

5. By a Notice of Decision dated 5 October 2015, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5] (“Director’s Decision”).

6. By a Notice of Further Decision dated 16 February 2017, the Director found that the applicant’s claim did not engage BOR 2 risk[6] upon receiving no response from the applicant to provide additional information (“Director’s Further Decision”).

7. The applicant appealed against the Director’s Decision and attended the hearing before the Board on 2 December 2015. The Board found there was no reliable evidence to substantiate his claim, such as the alleged injuries he sustained by Mr Kumar’s associates. It further held that Mr Kumar was not a public official nor was he acting in any official capacity. The applicant’s unawareness of the current situation of Katrena and Raj also further undermined his case. In light of its findings, the Board was of the view that the applicant’s claim for non-refoulement protection was not established and therefore dismissed the appeal on 22 December 2015.

8. As for the appeal against the Director’s Further Decision, the applicant was late by 23 days and pursuant to section 37ZT of the Immigration Ordinance Cap. 115, the Board considered whether the late filing of the applicant’s appeal should be allowed as a preliminary issue without a hearing. The applicant did not adduce documentary evidence and upon considering the relevant authorities, the Board rejected the applicant’s late filing of appeal on 24 January 2019.

The judge’s decision

9. On 15 February 2019, the applicant applied for leave to apply for judicial review against the decision made by “the Immigration Department” on 24 January 2019. Presumably, the applicant meant the decision of the Board dated 24 January 2019. There were no grounds in support provided for seeking relief in his application or in his supporting affirmation. As the applicant did not request for an oral hearing, the judge dealt with the application on paper.

10. The judge found there was no error of law or procedural unfairness in the decision of the Board. The judge further held the Board had applied an appropriate high standard of fairness through the adjudicating process. As it was concluded there is no reasonably arguable basis in the applicant’s intended challenge, the leave application for judicial review was dismissed on 29 March 2022.

Grounds of intended appeal

11. The applicant did not provide any grounds of appeal in his summons. In his supporting affirmation, he made various complaints, which may be summarised as follows:

(1)  He did not receive court documents in the post;
(2)  He was not provided legal representation throughout these proceedings; and
(3)  He has limited English abilities.

12. As for his written submissions, the applicant basically repeated what was stated in his supporting affirmation.

Analysis and disposition

13. 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.

14. 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 March 2022. The applicant took out a summons in the court below on 16 May 2022. He was late for over a month[7]. This is substantial and no explanation was provided by the applicant.

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

16. In assessing the merits 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.

17. 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 the 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.

18. In the present application, the applicant has raised new issues for the first time in his supporting affirmation and written submissions. These new grounds would not be entertained by the Court of Appeal as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[8].

19. In any event, the applicant’s contention that he has not been provided legal representation throughout these proceedings has no merit. It has been repeatedly stressed by the Court of Appeal that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceeding (Re Paswan Shibu Lal[2018] HKCA 249 at §21). Furthermore, interpreter services were provided at hearings at every stage in these proceedings. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire (Re Gurung Sagar[2019] HKCA 658 at §12).

20. As for the applicant’s contention that he was unable to receive Court documents, the address of posting was provided by the applicant himself in the Court documents filed, such as the affirmations and summonses. While documents sent to the applicant were returned to the Court as undelivered by the post office, the Court of Appeal has repeatedly stated that 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).

21. The applicant has clearly failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

22. For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 29 March 2022 and dismiss the summons filed on 5 October 2022.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 857

[2] [2022] HKCFI 2686

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] 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.

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7] Due to the temporary closure of the court registry for public health reasons from 7 March 2022 to 11 April 2022, the deadline should be 12 April 2022.

[8] Re Qadir Sher[2018] HKCA 160 at §11

LAKHBIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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