Rajesh Kumar Alias Rajesh Kum v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 332/2021

[2022] HKCA 519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 332 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2711 OF 2018)

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Before:  Hon Kwan VP and Chow JA in Court

Date of Written Submission: 14 September 2021

Date of Judgment: 22 April 2022

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J U D G M E N T

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

1.On 10 March 2021, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.On 28 July 2021, DHCJ Lung dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal^[2].

3.On 11 August 2021, the applicant filed the present summons with the Court of Appeal to appeal out of time the Order made by DHCJ Lung dated 10 March 2021.

4.The applicant is a national of India.  He is 31 years old.  He first lodged a non-refoulement claim on 17 April 2014.  On 18 August 2016, the Immigration Department sent him a “Notice of Persons Making a Non-refoulement Claim” and a Non-refoulement Claim Form (“NCF”) whilst the applicant was detained in the Castle Peak Bay Immigration Centre.  On the same day, the applicant was referred to the Duty Lawyer Service (“DLS”).  The first extension of time to submit the completed NCF was requested by DLS on the applicant’s behalf on 15 September 2016 and the second extension of time was requested on 29 September 2016.  Both time extension requests were granted by the Director and the deadline to submit the complete the NCF was on or before 13 October 2016.  However, DLS informed the Director on 13 October 2016 that they were unable to contact the applicant nor take any instructions to act for him. 

5.Therefore, the Director treated the applicant’s non-refoulement claim as withdrawn on 14 October 2016 and the said decision was conveyed in writing to the applicant by letter dated 18 October 2016.  On 9 January 2017, the applicant wrote to the Director requesting his non-refoulement claim be re-opened on the basis that he was unable to complete the NCF due to alcoholic problems as his family was tortured in India.  The Director did not accept these reasons as beyond the applicant’s control, nor did the applicant supply the Director with documentary proof as requested.  By a notice of decision dated 20 January 2017, the Director refused the applicant’s request to re-open his non-refoulement claims.

6.The applicant appealed against the Director’s decision and attended the hearing before the Board on 16 April 2018.  The Board found that the Director taken all necessary measures to ensure proper notice of the NCF was brought to the applicant’s attention.  The Board also did not accept the reasons provided by the applicant, such as his alcoholic problems.  Thus, the Board rejected the appeal on 10 August 2018 to re-open the applicant’s non-refoulement claim.

The intended judicial review

7.The applicant filed his Form 86 and an affirmation in support on 29 November 2018 for leave to apply for judicial review against the decision of the Board, after the expiry of the 3-month period required for applying for leave to bring judicial review.  He wrote that he was not satisfied with the Board’s decision.  As the applicant did not request an oral hearing, DHCJ Lung considered the application on paper.

The judge’s decision

8.The judge held that whilst the applicant did not set out the reasons for his delay, the court would consider the merit of his application as he was not legally represented. 

9.The judge found that the applicant’s ground in support of his application for judicial review was based only on his opinion and lacking any evidence in support.  Furthermore, there is no basis to intervene by way of judicial review as the assessment of evidence is primarily within the province of the Board and there was no indication of any errors of law or procedural unfairness or irrationality in the decision of the Board, applying §13 of Re: Kartini [2019] HKCA 1022. 

10.Thus, the judge refused to grant extension of time and dismissed the leave application on 10 March 2021.

Grounds of appeal

11.The applicant did not provide any grounds of appeal in his present summons.  As for his supporting affirmation, he stated basically that he was ignorant of court procedures and missed the filing deadline to appeal.  The applicant’s written submissions may be summarised as follows:

(1)  High standards of fairness are required on the part of the decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing the credibility of the applicant.

Analysis and disposition

12.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.

13.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 10 March 2021.  The applicant took out a summons in the court below on 26 May 2021.  He was 9 weeks late and has not provided reasonable explanation for the substantial delay.

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

15.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.

16.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.

17.The applicant failed to adduce any evidence to refute the Board’s decision in refusing to allow him to re-open his non-refoulement claim or provide any particulars to show that the Board had failed to apply high standards of fairness or acted in a procedurally unfair manner.  Furthermore, the applicant failed to demonstrate that the judge was wrong in refusing to grant extension of time for him to apply for leave to bring judicial review.

18.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 10 March 2021 and dismiss the summons filed on 11 August 2021.

The Applicant, acting in person

[1]  [2021] HKCFI 554

[2]  [2021] HKCFI 2085