RE THOLIYA AJAY

CAMP 264/2019

[2021] HKCA 663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 264 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1007/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 3 August 2018 refusing to grant extension of time for his application for leave 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 dated 19 June 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 15 January 2016 and 2 March 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 25 March 2014 illegally and later surrendered to the police on 6 April 2014. He lodged a non-refoulement claim on 8 April 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 15 January 2016 (“the Director’s First Decision”), the director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 2 March 2017, the director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 21 March 2017, the Board dismissed the appeal on 19 June 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  The Board found that the applicant dishonest and unreliable in his evidence on the reasons why he left India.  The Board was also satisfied that state protection would be available to the applicant and that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a form 86 on 4 December 2017 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 4 December 2017 , the applicant advanced the following grounds for judicial review:

(a)  lack of legal representation in his appeal before the Board; and

(b)  lack of language assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to extend time for applying for leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [18] of the CALL-1 Form:

“ 11. By then the applicant was more than 2½ months late with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that such application 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, which means on or before 19 September 2017 for the applicant to file his application but which he only did 2½ months later on 4 December 2017, for which he has never made any application for extension of time nor offered any explanation for his delay in his affirmation until at the hearing of his leave application before me when he claimed never to have received the Board’s decision until long after the stipulated three months period.

12. I note however that the Board’s decision was sent to his usual last known address which was the same address to which the notice of the hearing of his leave application was sent and for which he did as noted attend. Be that as it may, and while a delay of more than 2½ months certainly seems inordinate to me, it would be appropriate for me to see whether there is any good reason for extending time by looking at his proposed grounds to assess the merits if any of his substantive application.

13. For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without any difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15. As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of his simply speculative and without any merit.

16. Furthermore, as it has been found and established by both the Director and the Board in their decisions that the risk of harms from those BJP supporters if real is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of India, whilst his claim that he cannot relocate anywhere outside of his home village as he needs to take care of his widowed mother is self-defeating by his present action, there is simply no justification for affording him non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

17. 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.

18.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and as such there is no good reason for extending time to his leave application which is therefore dismissed.”

Application for leave and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to appeal.  He failed to do so.  By a summons dated 25 July 2019, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 23 September 2019.

12.  By a summons dated 2 October 2019, the applicant renewed his application before this court.  In his affirmation of the same date, he deposed that:

“ I would like to appeal out of time as I didn’t had the appropriate means nor I received the decision on time”

13.  In his skeleton submissions dated 4 November 2019, the applicant submitted that the Board’s Decision was procedurally unfair and unreasonable and that the Board failed to properly assess his credibility. However, the applicant provided no particulars to support these general assertions.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

15.  As is apparent from the CALL-1 Form, while noting that the delay was substantial and not excusable, the judge refused to grant an extension of time because of the lack of merit in the proposed judicial review. 

16.  The grounds set out in the submissions only contained general un-particularized assertions against the Board.  The grounds did not identify any error on the part of the judge. 

17.  As it has often been stated, general assertions without the necessary particulars cannot constitute effective grounds to support a judicial review: Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578.

18.  Further, in an appeal to this court, it is necessary to identify errors made by the judge as opposed to repeating allegations against the Board which had been rejected by the judge.  The applicant failed to identify any errors on the part of the judge.

19.  Having examined the judge’s decision, we cannot see any error in his decision.

20.  As there is no prospect of success in the intended appeal, we will not grant extension of time for a hopeless appeal. 

21.  The summons of 2 October 2019 is dismissed accordingly.