Re Sheikh Tajuddin

CAMP 330/2022, [2023] HKCA 677

On Appeal From [2021] HKCFI 1229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 330 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2254 OF 2020)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.By a summons filed on 1 September 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 4 May 2021 refusing to grant extension of time and dismissing his application for leave to apply for judicial review ([2021] HKCFI 1229)  (“Leave Decision”).  Later, by a decision dated 9 February 2022, the Deputy Judge refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 291)  (“the EOT Decision”).

2.The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 25 June 2019 (“the Board’s Decision”), and the decision of the Director of Immigration (“the Director”)  dated 29 June 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

4.Subsequently, by way of a Request for Dismissal of Appeal dated 6 April 2023, the applicant requested to withdraw the present reapplication for extension of time to appeal.

5.On the basis of his request to withdraw his application on 6 April 2023, we dismiss the applicant’s reapplication for extension of time to appeal.  In any event, his reapplication fails for the lack of merit, which we will explain further below.

Background

6.The applicant is a national of India.  He entered Hong Kong on 12 December 2008 and was permitted to remain as a visitor until 26 December 2008.  However, he did not depart and had overstayed since 27 December 2008.  On 12 January 2009, he was arrested by the police.  He raised a torture claim which was rejected by the Director on 15 October 2013.  On 18 October 2013, he raised a non-refoulement claim on the basis that he would be harmed or killed by his girlfriend’s family who opposed their relationship.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [5] of the Leave Decision.

7.By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk[1], namely BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

8.On 9 July 2018, the applicant appealed against the Director’s Decision to the Board.  On 5 June 2019, he wrote to the Board to withdraw his appeal.  Upon further enquiries with the applicant and being satisfied that his application to withdraw his appeal was freely sought, that he understood the consequences of the withdrawal, and that there was good reason for his proposed withdrawal as he considered that it would be safe to return to his home country, by its decision dated 25 June 2019, the Board directed that the Applicant’s appeal be withdrawn and that the Director’s Decision be confirmed.

The Leave Decision

9.On 12 November 2020, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  By then, he was nearly 13 months late in taking out his application.  No ground of review was provided in his Form 86.  In his supporting affirmation, he only stated that the problem which he had back home had started again and hence his life would still be in danger in his home country, and that he should therefore be allowed to “re-open” his claim.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

10.By the Leave Decision, the Deputy Judge refused to grant extension of time and dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [9] - [17] of the Leave Decision:

“9. However, more than one year later on 12 November 2020, the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that the problem which he had back home has started again and hence his life would still be in danger in his home country, and that he should therefore be allowed to ‘re-open’ his claim.

10. By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1)  of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

11. As the last day of the three-month period for the Applicant to file his Form 86 fell on 25 September 2019, he was therefore more than 13 months late with his application, and in considering whether to extend time, the court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKCA 393.

12. In the Applicant’s case, a delay of more than 13 months must be considered as very substantial, for which as noted above he did not provide any explanation other than a bare assertion that his problem in his home country has started again, and in the absence of any further details or elaboration or documentary evidence to corroborate his bare assertion, I am not satisfied that the Applicant has provided any good reason for his serious delay.

13. As for the merits, if any, of his intended application, as the Board had as noted above clearly and properly found his appeal to have already been validly withdrawn as a result of a deliberate and informed decision on his part, and hence his appeal is no longer extant and the Board had become functus officio with no further jurisdiction to take any further step regarding the appeal including either to re-open or to reinstate it before the Board: see Ali Usman [2018] HKCA 955; and Das Purnima Rani [2019] HKCA 669. As such I do not find any merits or basis in his intended application or intended challenge against the Board’s decision.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

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

16. Furthermore, the Applicant recently on 7 April 2021 filed an affirmation requesting to withdraw his application as he wants to go back to his home country.

17.   In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to withdraw his application and to return to his home country, I accede to his request and accordingly dismiss his leave application.”

The EOT Decision

11.Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

12.On 2 September 2021, the applicant filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over 3.5 months late with his intended appeal.  In his summons and supporting affirmation, the applicant contended that he did not receive the Leave Decision and the Court order timely from the High Court.  He further stated that he delayed in filing his application because he did not have time to consult a lawyer and that he took time to understand the Court procedure and to collect the fees of the Court.  His application for extension of time was also heard before the Deputy Judge on 19 January 2022 and a Hindi interpreter was present to provide language assistance.

13.By the EOT Decision, the Deputy Judge considered that the Leave Decision was sent to the applicant’s last reported address on the same date without being returned through undelivered post and ignorance of the rules could not be accepted as valid excuse for non-compliance.  Although an unrepresented litigant might need to seek help from others to prepare his litigation, the applicant failed to provide any good reason for his inordinate delay.  As there was no merit in the intended judicial review, having considered all factors, the Deputy Judge refused to grant the applicant extension of time to appeal.

The present application

14.By a summons and supporting affirmation both filed on 1 September 2022, the applicant reapplied to this court for leave to appeal against the Leave Decision.  In his summons and supporting affirmation, the applicant only claimed that he disagreed with the Deputy Judge’s decisions as he did not receive any decision but the Court did not give him the chance to appeal.

15.Pursuant to the directions made by the Registrar of Civil Appeals on 1 September 2022, the applicant lodged his written submissions on 15 September 2022. In those submissions, the applicant merely repeated the factual basis and procedural history of his non-refoulement claim and that his life would be under threat if he returned to India and that he disagreed with the Deputy Judge’s decisions.

Discussion

16.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

17.The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.We consider that the applicant’s delay of over 3.5 months as very substantial and we agree with the Deputy Judge that the applicant had failed to give any good reason for his delay.

19.More importantly, the applicant’s appeal is clearly without merit.  Nowhere in his summons, supporting affirmation or written submissions did he identify any error in the Leave Decision with specific particulars.  Accordingly, there is no proper ground of appeal and clearly no basis to disturb the Leave Decision.

20.For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 1 September 2022 is dismissed.

The applicant acting in person