Re Tarok Das Alias Tarok Chandra Das

HCAL 2621/ 2018

[2020] HKCFI 2871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2621 of 2018

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DECISION

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Background

1.On 8 November 2019, Deputy High Court Judge Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 8 November 2018. The Board in its decision upheld the decisions of the Director of Immigration (“the Director”) dated 26 November 2015 and 6 July 2017 rejecting the applicant’s non-refoulement claim.

2.The Judge refused to grant leave to the applicant to apply for judicial review for reasons stated in [11-22] of his decision (Form CALL-1). Significantly the Judge found the applicant’s intended application for judicial review has no reasonable prospect of success. He therefore refused to grant leave to apply for judicial review.

3.By a summons filed on 11 June 2020, the applicant applied for extension of time to appeal against the Judge’s refusal of leave.  The applicant had 14 days from the order of the Judge to apply to appeal that decision to the Court of Appeal.  He did not do so.  He now requires leave to extend time to appeal against that order out of time. The 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court ended on 22 November 2019. He was therefore late by more than 6 months with his intended appeal. 

4.In his summons and supporting affirmation of 11 June 2020, the applicant did not explain the reason for his late application. Nor did he provide any draft or proposed grounds of appeal, or particulars of errors or unfairness of the Judge. He only stated that he wants to appeal because he did not get a fair judgment.

Discussion

5.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

6.Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.  

7.On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

8.At the hearing on 30 September 2020, the applicant explained that he did not receive the Judge’s order until January this year and then the COVID-19 pandemic started. He also caught fever and cough and hence was not able to go out of his home. The person supposed to help him in this application also did not want to go out during the pandemic period.

9.According to the court’s record, the Judge’s order and the Form CALL-1 were properly served upon the address for service, and he is still using that address.   It is the duty of a litigant to give the court an address and update the address to which correspondence or notice can come to his attention in a timely manner.  The consequences of any delay arising from failing to do so will fall upon the litigant. 

10.The length of delay in the present application was very substantial. I do not accept the applicant’s explanation for the delay. The General Adjournment Period (GAP) imposed by reason of public health consideration for the COVID 19 pandemic started on January 29 and ended on May 3 this year. The applicant failed to provide any good reason to explain why he only received the Judge’s order in January 2020. The High Court Registry was re-opened on 6 May 2020. He did not take out his summons for extension of time until 11 June 2020. In my view, the applicant does not have a cogent explanation for the delay. The delay is therefore not excusable.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal.

11.In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Assessment of evidence and evaluation of risk are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. 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 judge’s decision, 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.

12.The applicant did not raise in his application any grounds of appeal or any errors or unfairness in the Judge’s decision.  And none could be ascertained from the papers or at the hearing.

13.In his decision dated 8 November 2019, the Judge dealt with each and every complaint raised by the applicant. The Judge properly reviewed the Board’s decision with rigorous examination and anxious scrutiny, he could not find any public law grounds that warrant the court’s interference with the Board’s decision.

14.In the present case, the Board found the general credibility of the applicant questionable and his delay in lodging his claim for more than 6 years after he became an overstayer also damaged the credibility of his claim. The Board’s decision was based on its adverse findings on the credibility of the applicant. On the evidence, the Board was plainly entitled to come to its findings.

15.Having considered all the materials before the court, I am of the view that the Judge’s observations are fully justified. I cannot find any flaws in his analysis. His decision to refuse leave is plainly correct. There is no reasonably arguable ground to challenge the decision of the Judge.

Conclusion

16.I cannot see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The summons dated 11 June 2020 taken out by the applicant is dismissed accordingly.