Waras Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1554/2023

[2024] HKCFI 1774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1554 of 2023

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BETWEEN

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D E C I S I O N

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The application

1.In October 2011, the applicant was an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”).

2.Before his appeal was heard, he applied to the Board to withdraw his appeal. The Board acceded to his request and dismissed his appeal (“the Board’s Decision”). He was then repatriated back to India.

3.Six years later, in 2023, he came to Hong Kong again and surrendered to the Immigration Department. He raised claim for non-refoulement. The Immigration Department treated his application as a subsequent claim application, which the Director rejected (“the Director’s Decision”).

4.The applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision. However, this application did not deal with the Director’s Decision.

5.The applicant then applied to amend Form 86 to apply for leave for judicial review of the Director’s Decision as well. Since time for his application for judicial review of the Director’s Decision had expired, the applicant also applied for leave to file the Amended Form 86 in respect of the Director’s Decision out of time.

6.By Form CALL-1 dated 21 February 2024 (“the Court’s decision”), the court granted leave to the applicant to include an intended review of the Director’s Decision and extended time to file the Amended Form 86 in respect of the Director’s Decision. In the same decision, the court dismissed the applicant’s application for leave to apply for judicial review of the Board’s Decision and the Director’s Decision. The Court’s decision was sent to the applicant at his last known address on 21 February 2024 without being returned by the Post Office.

7.The deadline for filing the notice of appeal against the Court’s decision is on 7 March 2024.

8.By summons filed on 22 May 2024, the applicant applied for appeal against the Court’s decision. He is about two and a half months out of time.

9.In support of his application, the applicant filed an affirmation, in which he said he was not satisfied with the Court’s decision and he did not get the letter from the court on time. He is deemed to receive the Court’s decision.[1]

Discussion

10.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing. See Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022.

11.The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of his case.

12.In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

13.In his original non-refoulement claim, the applicant said that if refouled, he would be harmed or killed by the local village head Suba and members of Akali Dal Party if he returns to India because of his conversion to Christianity from Sikhism and his refusal to reconvert back to Sikhism.

14.The applicant submitted his grounds in support of his application for leave for judicial review of the Board’s Decision and the Director’s Decision respectively. See paragraph 24 of the Court’s decision.

15.The court, having considered those grounds, had come to the findings below:

(1) In respect of the Board’s Decision and the Director’s Decision, it said:

“25. … After having been explained the legal principles in paragraph 22 above, the Applicant confirmed he had no complaints about procedural unfairness and irrationality in the 2023 Decision (the Board’s Decision) and would leave the issue of errors of law for the Court.

26. Having rigorously examined the 2023 Notice (the Director’s Decision), the request, the Statement and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO, correctly identified the issues; and properly analysed the evidence. …On any objective view, there was no new evidence or new interpretation of the existing evidence which could support a change of in circumstances as to entitled the Applicant to make a subsequent claim. …”

16.On the above findings, the court dismissed the applicant’s application for leave to apply for judicial review of the Board’s Decision and the Director’s Decision.

17.There is no valid reason from the applicant to challenge the Court’s decision.

18.The applicant therefore fails to show that there is any realistic prospect of success in his intended appeal.

19.In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.

The applicant was unrepresented.