Re Jaan Sheikh Babu

CAMP 130/2023, [2024] HKCA 1061

On appeal from [2022] HKCFI 2414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 130 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2603/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an application for extension of time to appeal against the decision of DHCJ To (“the Judge”) dated 8 August 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 13 November 2018 (“the Board’s Decision”)[1] dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 11 September 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.The applicant is a national of India. He entered Hong Kong as a visitor on 18 April 2005, but he overstayed and was arrested by the police on 15 January 2009.  On 18 January 2009, the applicant lodged a torture claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”), which was rejected by the Director on 21 September 2012.  On 3 October 2012, the applicant appealed against the dismissal of the CAT Claim to the Board, which was also dismissed on 28 November 2012.

3.The applicant subsequently lodged a non-refoulement claim on grounds other than torture by way of a written representation dated 13 March 2014.

4.The applicant’s claim was based on a fear of being harmed or killed by family members of a woman named Shelia, with whom his brother eloped in 1995.  The details of the applicant’s claim have been summarised by the Judge at [5] to [12] of his decision (“the CALL-1 Form”)[2].

5.By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].  

6.The applicant appealed to the Board.  After a hearing on 31 August 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, although the Board accepted the applicant’s claims that his brother had eloped with a woman against the wishes of her parents, it did not accept that the applicant was still the target for harm over a protracted period of time after his brother had departed India with Sheila. 

The Judge’s decision

7.The applicant filed a Form 86 on 19 November 2018 (as amended by the Judge on 8 August 2022) seeking to judicially review the Board’s Decision.  In his supporting affirmation, the applicant merely stated that he was dissatisfied with the Director’s Decision.

8.After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [18] to [19] of the CALL‑1 Form:

“18.   In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Board found the Applicant not credible on the crucial issues of his risk of harm upon his return to India.  Basically, he failed to discharge his burden of proving his fears and risks.   It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

19.  For the above reasons, leave to apply for judicial review was refused.”

The present application for extension of time to appeal

9.The applicant’s last known address at the time of the Judge’s decision was at 30 Temple Street, Yau Ma Tei (“the Address”). 

10.According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Address on 8 August 2022, which was not returned undelivered.

11.Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 8 August 2022.

12.The applicant thereafter took out a summons in the Court of First Instance on 5 January 2023 seeking extension of time to appeal, in which his address was stated to be at the Address.  In the summons and his supporting affirmation filed on the same date, he claimed that he did not receive the “High Court decision on time”.

13.The applicant’s application to appeal out of time was dismissed by the Judge on 13 February 2023[6].

14.By a summons filed on 29 March 2023, the applicant renewed his application for extension of time to appeal before this court. In the summons and his supporting affirmation, the applicant merely asked this court to extend time for his appeal.

15.In his written submissions lodged on 3 April 2023, the applicant simply repeated the dangers he may face should he return to India.

16.For completeness, although not relevant to the present application, the applicant informed the court by letter dated 8 July 2024 and an undated letter received on 17 July 2024 that he has applied for a writ of habeas corpus, but that as the hearing date of the application was still not fixed, he would like a refund of the relevant costs.

Discussion

17.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

18.As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Address, but was not returned undelivered.  The inference to be drawn is that the applicant has had notice of the Judge’s decision within the period which he was permitted to lodge an appeal.

19.In any event, the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has he explained how or when he had come to learn of the Judge’s decision.

20.Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.

21.We have nonetheless proceeded to consider the merits of the intended appeal.

22.The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

23.The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

24.It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

25.For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 29 March 2023 is accordingly dismissed.

The applicant acting in person