Jaspal Masih v. Torture Claims Appeal Board

CAMP 159/2022

[2022] HKCA 1487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 159 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2574 OF 2018)

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Before:  Hon Kwan VP and Chu JA in Court

Date of Written Submission:  1 June 2022

Date of Judgment:  7 October 2022

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.On 2 September 2021, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) refusing to allow the late filing of appeal concerning his non-refoulement claim[1].

2.On 27 September 2021, the applicant filed a summons for extension of time to appeal against that decision as the time for filing his appeal ended on 16 September 2021. The applicant’s summons was dismissed by DHCJ Bruno Chan on 11 May 2022[2].

3.On 18 May 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4.The applicant is a national of India. He is 46 years old. He was refused permission to land in Hong Kong on 14 July 2015 and he lodged his non-refoulement claim on the same day. His claim was made on the basis that he will be harmed or killed by the family of the girlfriend of his close friend for helping them to elope.

The decisions of the Director and the Board

5.By a Notice of Decision dated 22 September 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6.The applicant’s Notice of Appeal was received by the Board on 8 October 2015. He attended the hearing before the Board on 8 December 2015. The Board decided not to attach any weight to the applicant’s evidence in relation to the facts upon which he based his non-refoulement claim as some significant facts in his written grounds conflict with the facts set out in his non-refoulement claim form or were omitted in the form. The Board considered that the applicant failed to establish that he would face any risk of serious harm if he is refouled to India and dismissed the appeal on 8 January 2016.

7.By a Notice of Further Decision dated 15 February 2017, the Director rejected the applicant’s claim on BOR 2 risk[6].

8.The applicant submitted a Notice of Appeal to the Board out of time against the Director’s further decision on 24 April 2017. Pursuant to section 37ZS(1) of the Immigration Ordinance (Cap 115), the notice of appeal has to be filed with the Board within 14 days after the Director’s decision is given to the applicant. The Board considered that there was no denial of justice or unfairness, and there were no special circumstances in the applicant’s case which can justify his delay. Therefore, the Board dismissed the application for late filing on 5 November 2018.

The intended judicial review

9.The applicant filed a Form 86 and an affirmation on 16 November 2018 for leave to apply for judicial review against the decision of the Board dated 5 November 2018. He did not provide any specific grounds for his intended challenge but only stated in his supporting affirmation that he was not satisfied with the decision and his life is not safe in his country.

The judge’s decision

10.DHCJ Bruno Chan considered the leave application on paper as the applicant did not request for an oral hearing. After reviewing the Board’s decision, the judge held that there is no error of law, procedural unfairness or failure on the part of the Board to apply high standards of fairness in the decision. Therefore, the judge concluded there is no prospect of success in the intended judicial review and refused the leave application on 2 September 2021.

Grounds of intended appeal

11.The applicant stated in his submissions that the Board made many errors but the judge did not see any error. He asserted that the Board gave its own decision which is not based on the law and did not give him time to submit any document.

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 order was made on 2 September 2021. The applicant took out a summons for extension of time to appeal at the court below on 27 September 2021. He was late by 11 days.

14.The applicant told the judge at the hearing below that he was then suffering from poor health and due to his diabetic condition he was required to rest at home. The time for appeal had expired when he was feeling better. In the present application, the applicant stated in his affirmation that he did not get the judgment. The judge’s decision was sent to the applicant’s address on the date of handing down. In the absence of any further evidence in support of the applicant’s assertions, we are inclined to think that his explanations are not justifiable.

15.As the delay is inexcusable, the applicant 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.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.The applicant’s grounds were not advanced before the judge in the previous leave application. An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[7].

18.In any event, his grounds are just bare assertions. The applicant failed to identify the particular errors allegedly made by the Board. He also failed to produce the document which he alleged he was not given time to submit to the Board.

19.The applicant failed to show he has any reasonable prospect of success in his intended appeal, let alone a real prospect of success. We therefore refuse to extend time for him to appeal against the judge’s decision of 2 September 2021 and dismiss the summons filed on 18 May 2022.

The Applicant, acting in person