RE RESHAM

CACV 579/2020

[2021] HKCA 1081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 579 OF 2020

(ON APPEAL FROM HCAL NO. 1332 of 2018)

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J U D G M E N T

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The Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 1 September 2020[1]dismissing his application for leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 7 September 2017 rejecting his non-refoulement claim made in March 2017. 

2.  The applicant has consented to appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of India.  On 28 September 2010, he arrived in Hong Kong and was given permission to remain as a visitor for 14 days.  He overstayed and surrendered to the Immigration Department on 13 October 2010.  Two days later, he raised a torture claim, based on his fear of being harmed or killed by the family members of a girl called Neelam because he supported her relationship with his good friend, Vinod. 

4.  On 24 June 2013, the Director rejected his torture claim.  On 9 August 2013, the applicant made a CIDTP claim to the Director.  Upon the commencement of the Unified Screening Mechanism (USM) in March 2014, his claim was processed by the Director as a non-refoulement claim under all applicable grounds, except the torture risk ground in light of the previous rejection of his torture claim. 

5.  Before the Director came to a decision on his claim, the applicant wrote to the Director on 30 April 2015 to withdraw all his non-refoulement claims.  He was removed to India on 8 July 2015.

6.  In early 2017, the applicant came to Hong Kong illegally. In March 2017, he made an application to the Director for non-refoulement protection.  The Director treated this as a subsequent claim since he had previously made an unsuccessful torture claim.  Under section 37ZO of the Immigration Ordinance, an applicant may make a subsequent claim if he provides sufficient written evidence to satisfy the Director that (a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and (b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

7.  By his decision dated 7 September 2017, the Director refused to allow the applicant to make a subsequent claim, having regard to the requirements under section 37ZO of the Immigration Ordinance.   The Director was of the view that the applicant failed to show there had been a significant change of circumstances since his torture claims were refused or withdrawn, and that his subsequent claim, when considered with the materials previously submitted, did not have a realistic prospect of success.

8.  The applicant filed a notice of appeal dated 21 May 2018 with the Board, which was received on 25 May 2018. 

9.  By its decision dated 3 October 2018, the Board refused to accept the late filing of the notice of appeal for the reasons summarised by the Judge in [15] of the Form CALL-1^[2] as follows:

(1)  The Board does not have jurisdiction to deal with his intended appeal against the Director’s decision dated 7 September 2017 refusing to allow him to make a subsequent claim because this does not fall within the purview of section 37ZR of the Immigration Ordinance.

(2)  The applicant was seriously out of time for his intended appeal against the Director’s decision of 24 June 2013 since the 14-days’ appeal period had expired on 10 July 2013 (see section 37ZS of the Immigration Ordinance).

(3)  The applicant’s explanation for delay given in section 5 of the notice of appeal (i.e. he was then in prison in Tai Lam and did not have assistance) was a reference to the Director’s decision on the subsequent claim.  The applicant had given no explanation for his serious delay in appealing the Director’s 2013 decision.

(4)  The applicant was at the time legally represented by Duty Lawyer Service and would have been advised on his position in relation to the torture claim and the consequences of withdrawing his non-refoulement claim.  Upon his removal from Hong Kong, such claim could not be re-opened under section 37ZE(3) of the Immigration Ordinance, and the same would apply to any possible appeal against the decision regarding his torture claim.    

The Judge’s decision

10.  Meanwhile on 9 July 2018, which was before the Board gave its decision, the applicant filed a Form 86 together with an affirmation to apply for leave to judicial review.  In the Form 86, the applicant gave the date of the decision to be reviewed as 7 September 2017, although he did not specify that it was a decision of the Director.  At the hearing of the appeal before us, the applicant confirmed that the intended judicial review was against the Director’s 7 September 2017 decision refusing to allow his claim made in March 2017. 

11.  The applicant did not provide any ground for seeking relief.  He only stated in the supporting affirmation that he was not satisfied with the decision of the Board; and he could not go back to his home country because his life would be in danger.

12.  The Judge heard the application at an oral hearing on 9 June 2020 attended by the applicant.  For the reasons he gave at [18] to [23] of the Form CALL-1, the Judge refused the applicant’s application:

“18. In the Applicant’s case, as I have found above that there is no reasonably arguable basis to challenge the finding of the Board, but even if I were to treat his application as one for judicial review of the Director’s decision regarding his subsequent claim instead of the Board’s decision, the Applicant would again be seriously out of time with such application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

19. As the last day of the three-month period for him to file his Form 86 regarding the Director’s Decision dated 7 September 2017 fell on 7 December 2017, the Applicant would be late by more than 7 months with such 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: AW v Director of Immigration [2016] 2 HKC 393.

20. In the Applicant’s case, a delay of 7 months must be regarded as substantial and excessive, for which the Applicant did not provide any explanation, and as for the merits, if any, of his intended application, as also noted he did not put forward any proper ground for his intended challenge either.

21. On the basis of the additional material and information submitted by the Applicant for his subsequent claim, the Director was entitled to find, and correctly in my judgment, that his claimed ill-treatment by the local police during his arrest arose only from a false charge brought by Neelam’s family against him which was itself a private personal dispute between them, and in the absence of any evidence that he was still being pursued by the police prior to his departure from India or of any state or official involvement in the dispute between him and Neelam’s family, the Director was entitled to and correctly found both state protection and reasonable internal relocation within India available to the Applicant upon his return to India to negate any such risk in his subsequent claim, and in the absence of any error of law or procedural unfairness in his process before the Director or in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Director either.

22. In the premises and 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 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.

23. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of either the decision of the Director or the Board, and I accordingly refuse his leave application.”

The appeal to the Court of Appeal

13.  The applicant filed a notice of appeal on 27 October 2020 to appeal against the Judge’s decision.  He gave the following as his grounds of appeal:

“My life is danger in my origin country that’s why I am requested to court could you please save my life’s as a human been. Also I am requested to court I don’t have any legal represented could you please provide me legal represented bundle of thanks.”

14.  The applicant has put in a written submission on 10 June 2021 in which he put forward the following arguments:

(1)  The Board did not make sufficient enquiry before finalising its decision.  If it was safe in India, why would he come to Hong Kong for a second time?

(2)  The Board dismissed his appeal without giving any reason.

(3)  His life would be in great peril if he were to go back to India.  He has no faith in the authorities in his country.

(4)  He would like to have legal and interpretation assistance.    

15.  We heard the appeal on 20 July 2021.  At the hearing, the applicant had nothing further to say. 

Discussion

16.  As mentioned above, the applicant’s intended judicial review is against the Director’s 7 September 2017 decision refusing to allow his claim made in March 2017.  He could not have intended to judicially review the Board’s decision dated 3 October 2018, which was not yet made when he filed his Form 86 in July 2018.  Judicial review proceedings are ground-specific and decision-specific.  It would not have been open to the applicant to extend his application for judicial review to also include the Board’s 3 October 2018 decision.  Accordingly, when the Judge dealt with the applicant’s application, he did not need to address, and should not have addressed, the Board’s 3 October 2018 decision.   

17.  As to the intended judicial review against the Director’s 7 September 2017 decision, it was late by more than seven months (see Order 53 rule 4(1) of the Rule of the High Court).  This was substantial delay for which the applicant had given no reason. 

18.  As to the merits of the intended judicial review, we have examined the Director’s decision and reasons.  Assessment of credibility and finding of facts are matters for the Director, who is the primary decision maker.  On the materials before us, we do not discern any error of law, irrationality or procedural irregularity in the Director’s decision and the process by which he came to his decision.  We agree with the Judge that it was open to the Director to find that the requirements in section 37ZO of the Immigration Ordinance were not met.  There is thus no proper ground in law for the Court to interfere with the Director’s decision.  The Judge was correct in concluding that the intended challenge to the Director’s decision has no prospect of success.       

19.  In an appeal from a judge’s decision, the focus of the appellate court is on the correctness of the judge’s decision and reasons.  The grounds of appeal and arguments put forward by the applicant in this appeal, however, have not pointed to any error in the Judge’s decision and reasons.  They are only directed at the Board’s decision, which is not the subject matter of his Form 86 and is irrelevant to this appeal. 

20.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.