Re Ashwani Kumar

CAMP 548/2021

[2022] HKCA 623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 548 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1513 OF 2018)

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Before:  Hon Cheung and Chu JJA in Court

Date of Decision:  4 May 2022

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

I.  Renewed application for extension of time to appeal

1.On 31 July 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 16 July 2018, which dismissed his appeal against the rejection of his non-refoulement claim by the Director of Immigration (the ‘Director’)  on 15 January 2018.  The application was brought within time.

2.By his decision dated 6 May 2021 ([2021] HKCFI 1288)  (the ‘Leave Decision’), Deputy High Court Judge Bruno Chan (the ‘Judge’)  refused to grant leave to the applicant for judicial review.

3.Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the decision.  Being out of time for about three weeks, the applicant took out an application on 11 June 2021 before the Judge requesting an extension of time to appeal.  The Judge on 10 November 2021 rejected the applicant’s application ([2021] HKCFI 3248)  (the ‘EOT Decision’).

4.Under Order 59, rule 14(3)  of the Rules of the High Court, Cap. 4A, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (i.e. by 17 November 2021).  On 2 December 2021, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.

5.Under Order 59, rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual Background

6.Briefly stated, the applicant is an Indian national.  He entered Hong Kong as a visitor in September 2016 but overstayed.  The applicant raised his non-refoulement claim on 7 November 2017 on the basis that if he returned to India he would be harmed or killed by his uncle over some land dispute in his home village.

III.  The Director’s Decision

7.The Director decided against the applicant’s non-refoulement claim on 15 January 2018. The decision covered all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (‘Torture Risk’), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘HKBOR’)  being violated including right to life under Article 2 (‘BOR 2 Risk’)  and risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (‘BOR 3 Risk’), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (‘Persecution Risk’).

8.The Director found no substantial grounds for believing that there would be any real risk of the applicant being harmed or killed by his uncle upon his return to India due to the low intensity and frequency of past ill-treatment from him.  Moreover, it was a private family dispute over land between them without any official involvement.  In the absence of official involvement, state protection would be available to the applicant.  Further, based on reliable and objective Country of Origin Information (‘COI’), the Director found that internal relocation to other parts of India away from his home district (where it would be difficult if not impossible for his uncle to locate him)  was viable.

IV.  The Board’s Decision

9.The applicant appealed against the Director’s Decision to the Board on 26 January 2018.  An oral hearing was conducted on 8 May 2018.  The Board dismissed the applicant’s appeal on 16 July 2018, and the Director’s Decision was affirmed.  While accepting the applicant’s claim of his dispute with his uncle over his land in his home village, the Board found no evidence of any state or official involvement, and state/police protection would be available to the applicant upon his return to India.  Further, it would be safe and reasonable for him to relocate and move safely to other areas of India away from his home district without any risk of being located by his uncle.  His claim for non-refoulement protection failed on all applicable grounds.

V.  The Leave Decision

10.On 31 July 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s Decision.  However, he did not put forward any ground for seeking relief in his form.  In his supporting affirmation of the same date, he merely stated that he was not satisfied with the decision without putting forward any proper ground for his intended challenge.  As he did not request any oral hearing, the Judge dealt with the application on papers.

11.By the Leave Decision dated 6 May 2021 ([2021] HKCFI 1288), the Judge refused to grant leave to apply for judicial review, holding that :

‘ 9. .... in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the applicant, I did not find any reasonably arguable basis for [the applicant’s] intended challenge.’

12.The Judge further held at [11]-[13] that :

‘ 11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12．  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

13.   For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.’

VI.  The EOT Decision

13.On 11 June 2021, the applicant applied for an extension of time to appeal against the Leave Decision, as he was out of time for about three weeks.  The applicant explained by affirmation that he never received the decision in the mail even though he did report his address to the Immigration Department, and that it was only later when he reported on his recognizance that he was informed of the decision by his immigration officer.  He was already out of time with his intended appeal by then.  He was absent at the hearing of the application for extension of time to appeal before the Judge.

14.By the EOT Decision dated 10 November 2021 ([2021] HKCFI 3248), the Judge held that a delay of three weeks was significant.  He did not accept the applicant’s explanation for the delay, as he held at [5] that :

‘ 5. The court record shows that the decision was sent on the same day to the applicant’s last reported address which is the same as stated in his present application without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate his bare assertions, and as he also failed to attend the hearing of his summons without any explanation, I am not satisfied that the applicant has provided a good reason for his delay.’

15.The Judge further held at [6] that :

‘ 6. More importantly, the applicant has failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or his affirmation, and as noted above that he also failed to attend the hearing of his summons. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.’

16.The Judge refused to grant extension of time to appeal against the Leave Decision.

VII.  The present application

17.On 2 December 2021, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.  The applicant was late for about two weeks in taking out the present summons without offering any explanation.

18.He did not set out any grounds of appeal in the summons or in his affirmation both of 2 December 2021.

19.In his written submissions dated 16 December 2021, the applicant referred to authorities and principles in this area of the law.  He submitted that the adjudicator of the Board acted in a procedurally unfair manner without properly assessing his credibility.

20.Further, he made references to section 37ZT of the Immigration Ordinance (Cap. 115)  and the matters that the Board should consider where there has been late filing of a notice of appeal, without explaining the relevance of such references.

21.Lastly, he stated that ‘THE BOARD MADE DECISION ON THE BASIS OF OTHER APPLICANT. because they dont know when we asked help from police then they response that its your personal matter. and they asked for money to submit the file against my opponent. and i dont have that much money to win the case against him. they are very wealthy and very well known in the village’.

VIII.  Analysis

22.In considering whether to extend time for appeal, the Court will have regard to :

1)  Length of the delay;

2)  Reasons for the delay;

3)  Prospect of the intended appeal; and

4)  Prejudice to the putative respondent if extension of time was granted.

23.The applicant was about three weeks late in taking out an application on 11 June 2021 before the Judge for an extension of time to appeal.  The Judge rejected the applicant’s explanations for the reasons he gave.

24.In the present summons, apart from repeating that he did not receive the Leave Decision (which was rejected by the Judge), the applicant said that he lived in an old building with no sign on letter box, and that ‘maybe the postman put in the wrong box’.  This, however, is contrary to the court record that the decision was sent to the applicant’s last reported address.

25.In his affirmation dated 2 December 2021, he also stated that he ceased to have legal representation after the Board made the decision against him.  This is not a valid explanation for the delay.

26.On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

27.The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

28.The applicant has not provided any draft or proposed grounds of appeal.  No valid ground of appeal can be found from the general propositions set out in his written submissions regarding high standard of fairness or the reasonableness of a decision, or his bare assertion that the adjudicator acted in a procedurally unfair manner without properly assessing his credibility.  The same applies to his reference to late filing of a notice of appeal before the Board, and to his claim that the police in India refused to help him (which claim had been considered and rejected by the Director and by the Board).

29.As the applicant has not clearly and properly identified any error in the decision or any proper grounds of appeal, the intended appeal does not have any prospect of success.

IX.  Disposition

30.As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, the applicant’s summons dated 2 December 2021 is dismissed.

Applicant, unrepresented, acting in person