RE SK SHARAFAT

CAMP 177/2019

[2021] HKCA 371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 177 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 623 OF 2017)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 25 June 2018 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 11 August 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 27 April 2016 and 15 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 22 March 2014 as a visitor and was permitted to remain until 5 April 2014.  He overstayed and surrendered to the authorities on 13 April 2014.  He lodged a non-refoulement claim on 15 April 2014. 

3.  The applicant’s claim was based on threats from members of a labour union.  The details of the applicant’s claim have been summarised by the judge at [3] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 27 April 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 15 February 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 Board.  After a hearing on 25 May 2017, the Board dismissed the appeal on 11 August 2017 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  In the Board’s Decision, the Board found that the applicant is not at risk of being subject to any of the proscribed harms.  The Board was also satisfied at [116] that state protection would be available for the applicant and at [123] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 15 September 2017 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 15 September 2017, the applicant advanced a number of grounds for judicial review which have been summarized by the judge at [13] of the CALL-1 Form:

“The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise submits both decision-makers failed to inform the applicant that his claim would be assessed in the light of Country of Origin information and they cherry picked at that information. They also failed to consider the concept of extended State acquiescence. They failed to consider the applicant’s psychological and mental trauma. The adjudicator of the TCAB is accused of failing to consider that public officials were involved in torturing him.”

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 grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL-1 Form:

“12. I have considered with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. The applicant’s complaints against her and the procedure undertaken are not made out. I find no substance in the grounds of this application.

13. The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise submits both decision-makers failed to inform the applicant that his claim would be assessed in the light of Country of Origin information and they cherry picked at that information. They also failed to consider the concept of extended State acquiescence. They failed to consider the applicant’s psychological and mental trauma. The adjudicator of the TCAB is accused of failing to consider that public officials were involved in torturing him.

14. Leaving aside my view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here. Leaving aside that view, even if this application applied to both decision-makers, there are no merits in the grounds against either.

15. There are no particulars put forward in his grounds against either the adjudicator or the Director. The applicant would have been legally represented before the Director. His legal representative would have known that the Country of Origin information was relevant. Because of the lack of particulars, I find no merit in the accusation that the decision-makers cherry picked at information to the detriment of the applicant.

16. Both the Director and the adjudicator of the TCAB did consider the concept of extended State acquiescence. The applicant made no report to the police or any authority. This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons. Moreover, the adjudicator specifically considered whether public officials were involved in torturing the applicant.

17. After considering the applicant’s grounds, I do not find any that shows there was an error of law by the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

18. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A, the applicant should lodge an appeal within 14 days.  He failed to do so.  By a summons dated 17 August 2018, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Josiah Lam on 18 July 2019.

12.  By a summons dated 31 July 2019, the applicant applied for leave to appeal against the decision by DHCJ Josiah Lam on 18 July 2019.  He advanced the following grounds of appeal:

(1) he did not understand the judgments and could not advance proper grounds of appeal.  The judge failed to acknowledge his language incapability;

(2) the discretion to extend time should be exercised in his favour because he did not receive any language or legal assistance and he was not aware of the time limit for appeal;

(3) the applicant had to rely on his friends to translate the documents as there was no interpretation service;

(4) the judge failed to consider the significance and unfairness from the lack of language and legal assistance;

(5) the applicant only received assistance from his friends and without legal assistance he was not able to advance proper grounds for leave for judicial review; and

(6) the judge failed to consider the lack of interpretation service.

13.  In his skeleton submissions dated 21 August 2019, the applicant reiterated the grounds in the summons.  He also submitted that the high standard of fairness demands interpretation service be made available to him at all times.

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.  We first note that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  Ignorance of the law on the part of the applicant is not a reasonable excuse for the delay.  We further find no merits in the intended appeal.

16.  As to the grounds of appeal concerning the lack of legal and language assistance to him, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any real prejudice in the leave application.

17.  As for the lack of language assistance, we note that the applicant has admitted that he has access to language assistance.  The applicant was able to provide documents to the court in English, in which he identified the alleged errors committed by the judge and made submissions on those alleged errors.  It is clear that either he is reasonably proficient in English or has access to language assistance.  We are not satisfied that the applicant suffered any real prejudice from the alleged lack of language assistance. 

18.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 31 July 2019 is dismissed accordingly.

19.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court, Cap 4A, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.