RE MOHAMMED ALAM

CAMP 576/2021

[2022] HKCA 363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 576 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 458 OF 2019)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang (“the Judge”) dated 28 January 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation, and also lodged a written submission to support his application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is an Indian national aged 45. He arrived in Hong Kong on 3 October 2009 and was given permission to remain as a visitor for 14 days. He overstayed and was arrested by the police on 18 October 2009. He raised a torture claim[2] which was rejected by the Director on 25 November 2013. On 2 December 2013, he raised a non-refoulement claim based on his fear of being harmed or killed by his creditor, who was a moneylender and a member of the Communist Party of India (Marxist), due to his inability to repay his loan. The details of the applicant’s claim were set out in the decision of the Director at [9]. We will not repeat them.

6.  By his decision dated 17 July 2018, the Director rejected the applicant’s claim having regard to the BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds. There was no assessment under the torture risk ground in view of the previous rejection of his torture claim.

7.  The applicant appealed the Director’s decision to the Board. A hearing was held on 19 October 2018. By its decision dated 23 January 2019, the Board dismissed the appeal. The Board found there was no evidence to show that the applicant will suffer ill-treatment, and that his fear was not well-founded, having regard to the fact that the creditor had only made threats and slapped him once, and had not really been looking for him. It further found the dispute to be a private monetary dispute, and any risk of harm faced by the applicant would be reduced or negated by the availability of internal relocation options. The Board concluded that the claim failed on all applicable grounds.

8.  On 18 February 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He did not put forward any grounds for seeking relief. He only stated in the affirmation that:

“I want to appeal against the decision of deputy judge Mr (Kwan Kwok Kuen) Decision to refuse to leave to judicial review this decision is unfair and unreasonable.”

9.  The Judge considered the application on paper and refused to give leave to apply for judicial review for the reasons set out in [13] to [16] of the Form CALL-1 dated 28 January 2021 as follows:

“13. The only ground raised by the applicant does not appear to engage with the Board’s decision. The adjudicator presiding the Board is not by the name of Kwan Kwok Kuen. In any event the complaint was just a general and vague assertion that its decision is unfair and unreasonable without any specifics or particulars as to how the Board was unfair or unreasonable in the public law sense. Nevertheless, the court is under a duty to consider the application with rigorous examination and anxious scrutiny.

14. In the present case, the Board rejected the applicant’s appeal/ petition that on the primary facts claimed by the applicant, there is no basis for the applicant’s fear of harm. Moreover, internal relocation is a reasonable and viable option for him. As mentioned above, assessment of risk of harm and viability of internal relocation are primarily within the province of the Board. This court will not interfere with the decision unless there is a public law ground for the court to do so.

15. The fear of the applicant arose from a private loan dispute. Even on his own account, the past ill treatment was of low intensity and frequency. It came nowhere near the level of severity required to constitute torture or CIDPT. Despite the repeated threats by the creditor, the applicant was unable to repay. There was no evidence why the creditor would still wish to pursue him everywhere in India after so many years. India is a big country with a population of about 1.3 billion. Internal relocation is obviously a reasonable option for him. There is no substantial ground for believing that he would be at real risk of any type of proscribed harm, if refouled. The decision of the Board is eminently reasonable.

16. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness.”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.

11.  By a summons filed on 29 March 2021, the applicant applied for an extension of time to appeal the Judge’s decision. At the hearing of the application before Deputy High Court Judge Bruno Chan, the applicant was absent. By his decision handed down on 5 October 2021[6], Deputy High Court Judge Chan refused the application.

12.  On 20 December 2021, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

13.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14.  The applicant was more than six weeks late when he made the application for extension of time on 29 March 2021. He explained the documents mailed to him by the Court were lost in the post, he had to search the court file to obtain copies of them, and by the time he had the documents the time for appeal had expired. We note from the court file that the Form CALL-1 and sealed order were sent to the address stated in the affirmation filed together with the Form 86, and had not been returned by the Post Office. We also notice that the applicant gave a different address in the summons and affirmation filed on 29 March 2021. It would appear that the applicant had changed his address without informing the Court. In these circumstances, we do not find the explanation for the delay satisfactory. Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.

15.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  The applicant did not provide any ground in support of his intended appeal in either the summons or the affirmation.

18.  The applicant’s written submission quoted extensively from Secretary for Security v Saktheval Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51], and also refers to ST v Betty Kwan[7] [2014] 4 HKLRD 277 as well as the decisions on the principle of Wednesbury unreasonableness. It is said that the Board acted in a procedurally unfair manner in dealing with her application without properly assessing his credibility. It also referred to section 37ZT of the Immigration Ordinance which concerns late filing of notice of appeal to the Board.

19.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1) The Board did not make any adverse finding on the credibility of the applicant or his claims. The applicant’s complaint that the Board did not fairly or properly assess his credibility is therefore misplaced.

(2) Similarly, section 37ZT of the Immigration Ordinance is irrelevant as the applicant’s appeal to the Board was not out of time.

(3) The applicant has also not shown how the legal propositions stated in the written submission relate to his intended appeal.

(4) In any event, assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker. The Board had, for the reasons it gave, found the applicant’s fear and his claim of risk of harm not borne out by the facts of his claim and that the requirements for granting non-refoulement protection had not been met. The applicant has not pointed to any error in the Board’s assessment.

20.  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

21.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success. This being the case, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 20 December 2021.