RE ALAM SAHDAB

CAMP 197/2021

[2021] HKCA 1851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 197 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 295 OF 2019)

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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 dated 27 May 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 25 May 2021 refusing the applicant’s application for extension of time to appeal ([2021] HKCFI 1418) (“EOT Decision”) against the Deputy Judge’s earlier order dated 25 May 2020, whereby the Deputy Judge refused to grant extension of time to the applicant to apply for judicial review and dismissed his application for leave to apply for judicial review ([2020] HKCFI 478) (“Leave Decision”).

2.  The applicant’s intended judicial review was against a decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated “5 May 2014”[1] dismissing the applicant’s appeal against the first decision of the Director of Immigration (“the Director”) dated 5 May 2014 rejecting his claim for non-refoulement protection.

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”).

Background

4.  The applicant is a national of India.  He entered Hong Kong illegally on 10 November 2006 and was arrested by the police on 16 October 2008.  He was referred to the Immigration Department for repatriation, and he raised a torture claim on 29 June 2009 on the basis if he returned to India he would be harmed or killed by his creditor for failing to repay his debts.  Details of the applicant’s claim were summarised by the Deputy Judge at [2] ‑ [4] of the Leave Decision.

5.  By a Notice of Decision dated 5 May 2014, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR3 risk[3] and prosecution risk[4] (“the Director’s 1^st Decision”). After considering the evidence, the Director considered there was no reliable evidence of any threats from his creditor to harm or kill him and in any event, the problem with his creditor was a private monetary dispute.  The Director assessed the applicant’s level of risk of harm from his creditor upon his return to India as low and that state protection and reasonable internal relocation alternatives would be available to him in India.

6.  On 5 May 2014, the applicant appealed against the Director’s 1^st Decision to the Board.  Having considered the applicant’s case as a whole, the Board considered that the applicant failed to substantiate that he would face torture or ill-treatment if he returned to India.  The Board also found that the applicant’s belief, if he had any, of being subjected to torture or ill-treatment in India was more imaginary than real and his claim for non-refoulement protection must fail.  Accordingly, the Board dismissed the applicant’s appeal on 6 October 2014 and affirmed the Director’s 1^st Decision.

7.  By a Notice of Further Decision dated 5 January 2017, the Director rejected the applicant’s non-refoulement claim based on BOR2 risk[5] (“the Director’s 2^nd Decision”).  No appeal was brought by the applicant to Board against this decision.

The Leave Decision

8.  On 31 January 2019, the applicant filed a Form 86 together with a supporting affirmation seeking leave to apply for judicial review against the Board’s Decision “dated 5 May 2014”. By then, he was more than four years late with his application.[6]  No ground for seeking relief was stated in his Form 86.  In his supporting affirmation, he only asserted that he did not agree with the Board’s Decision because his life would be in danger in his home country and he could not go back there.  As the applicant did not request for an oral hearing, the Deputy Judge considered his application on paper.

9.  By the Leave Decision, the Deputy Judge refused to grant extension of time to the applicant for leave to apply for judicial review and dismissed his application for leave to apply for judicial review for the following reasons:

“11. Whether it was to challenge the decision of the Director or of the Board, the Applicant would still be seriously late with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A 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.

12. As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board is pursued by a non‑refoulement claimant on the basis that the Director’s decision has been superseded by the Board’s decision, as in the present case, it is therefore not open to the Applicant to challenge the Director’s first decision of 5 May 2014 by way of judicial review, and I shall therefore only focus on his intended challenge of the Board’s decision.

13. As such, the last day of the three-month period for the Applicant to file his Form 86 for judicial review of the Board’s decision of 6 October 2014 fell on 6 January 2015, he was therefore late by more than four years 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14. In the Applicant’s case, a delay of more than four years must be considered as extremely excessive, for which he did not provide any explanation, nor did he as noted above put forward any grounds for his intended challenge, and in the absence of which I am unable to find any merits in his application.

15. 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 an 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.

16. In the Applicant’s case, as already noted he did not identify any error of law in the Board’s decision or of procedure in the process before the Board, and given the clear finding in its decision that on his own case at the highest that his alleged risk of harm from his creditor in his claim does not come within any of the applicable grounds, I do not find any reasonably arguable basis to challenge the finding of the Board.

17. Even if the Applicant had in fact intended to challenge the second decision of the Director, ie the Further Decision of 5 January 2017 regarding his BOR 2 risk, against which he has not lodged any appeal to the Board and hence it could still be susceptible to judicial review, the Applicant would still be way out of time by more than one year and nine months, and as found by the Director, the nature of the risk in his claim clearly does not engage BOR2 risk, similarly I do not find any reasonably arguable basis to challenge the finding of the Director.

18. Furthermore, the fact that it has been established by the Director in his earlier 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 part 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.

19. In the premises and having proceeded to consider 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.

20. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reasons for his serious delay, I refuse to extend time and accordingly his application is dismissed.”

The EOT Decision

10.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days after the order.  No notice of appeal was filed by the applicant within the 14-day period.  On 7 December 2020, the applicant filed a summons for extension of time to appeal (“the EOT Summons”) together with a supporting affirmation.  By then, the applicant was late for almost six months with his intended appeal.  On 12 May 2021, the Deputy Judge heard his application (“the EOT Hearing”).

11.  By the EOT Decision, the Deputy Judge refused to grant extension of time to appeal to the applicant.  The Deputy Judge considered the applicant’s delay of six months as very substantial and he had not provided any good or valid reason for his substantial delay.  As to his contention during EOT Hearing that some co-tenant of his mistook his letter from the Court and the same was returned to him only much later, the Deputy Judge noted that the Leave Decision was sent on the same day to his last reported address which was not returned through undelivered post.  The Deputy Judge was not satisfied that the applicant had provided any good reason for his substantial delay.

12.  As the applicant did not put forward any proper or valid proposed grounds of appeal or any error in the Leave Decision, and his assertion during the EOT Hearing that he could not return to India due to the serious COVID-19 pandemic situation was entirely irrelevant to his intended appeal, there was no prospect of success in his intended appeal and the Deputy Judge dismissed the EOT Summons on 25 May 2021.

The Present Application

13.  By a summons dated 27 May 2021, the applicant sought leave from this Court to appeal against the EOT Decision.  In the said summons, the applicant did not provide any viable grounds of appeal and only stated that:

“It is Ordered that the application for extension of time to appeal be refused and the Summons be dismissed. As a Layman I would like to appeal on Your Honour’s Court that the Learned Judge was wrong in accepting the adjudicator finding ‘the only fact established is that the Learned Judge had failed to consider all applicable grounds of Non-refoulement Claims and in particular Non-refoulement on the grounds of risk of violation of articles 2 and 22 of the HONG KONG Bill of Rights Ordinance. So It is my kindly request to the Court to please allow me to appeal again.” [sic]

14.  In his supporting affirmation of the same date, the applicant claimed that he would face hardship and his life would be in danger if he returned back to India.  The applicant failed to comply with the directions given by the Registrar of Civil Appeals on 29 June 2021 and 20 July 2021 and did not lodge any written submissions.

Discussion

15.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

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.  We consider the applicant’s delay of almost six months as substantial and the applicant has not provided any cogent explanation for his delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

18.  In assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge 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].

19.  In the present case, the applicant’s grounds are just vague and bare assertions without particulars, elaboration or evidence in support.  They are not viable grounds of appeal.  The intended judicial review was against the Board’s Decision and as noted by the Deputy Judge, the applicant did not appeal to the Board against the Director’s 2^nd Decision.  In any event, the Deputy Judge had observed that the nature of the risk in his claim clearly did not engage BOR2 risk and there was no reasonably arguable basis to challenge the finding of the Director.

20.  As repeatedly emphasised by this Court, the assessment of risk of credibility and risks of harm is a matter for the Director and the Board, who are the primary decision makers.  The Court should not usurp the role of the decision maker: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The complaint that the Deputy Judge failed to consider the applicant’s claim under all applicable grounds is therefore misplaced and wholly without merit.  In the absence of any error committed by the Deputy Judge, there is no merit in the applicant’s intended appeal and it will be futile to extend time.

21.  For the above reasons, the intended appeal has no prospect of success.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 27 May 2021 dismissed.