RE SHARMA RAHUL

CAMP 245/2019

[2021] HKCA 640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 245 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 191/2018)

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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 of 18 January 2019 refusing leave to the applicant to apply 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 30 January 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 9 September 2016 and 4 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 21 June 2014 illegally and was arrested by the police on 13 August 2014.  He lodged a non-refoulement claim on 17 August 2014. 

3.  The applicant’s claim was based on threats from his paternal uncle concerning the applicant’s succession to the wealth and business of his father.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 9 September 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 4 August 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 29 January 2018, the Board dismissed the appeal on 30 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [52] of the Board’s Decision, the Board held that the applicant has not made out a case for any of the grounds for protection.  The Board was also satisfied at [87] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 8 February 2018 which contained the following grounds for judicial review, as summarized by the judge at [11] of the CALL-1 Form:

(a)  that the Director and the Board reached the wrong decision in assessing his USM claim;

(b)  that their decisions were not reasonable or fair by the Wednesbury standard;

(c)  that they failed to consider that right to life must be protected from extra-judicial killings which he may face if deported to India; and

(d)  that the Board failed to give him sufficient time and opportunity to arrange relevant evidence in support of his non-refoulement claim as well as his appeal

9.  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 give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [16] of the CALL-1 Form:

“ 12. These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy that extra-judicial killings were to his case. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13. As for his complaint that the adjudicator failed to give him sufficient time or opportunity to provide his evidence in support of his claim or his appeal, this issue was never raised in his appeal before the Board or at his oral hearing before the adjudicator, nor did he ever request the adjudicator for further time or opportunity to submit additional evidence or information. Even now in his application before me he did not adduce further evidence or request for further time or opportunity to do so. As such I do not find any merit in this complaint of the applicant either.

14. The fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. 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.

16.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application. ”

Application for extension of time to appeal and grounds for appeal

10.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 15 July 2019, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 23 September 2019.

11.  By a summons filed on 8 October 2019, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“ Leave be granted to appeal against the [judge’s] decision dated 18 January 2019”

12.  In the affirmation in support, the applicant 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 unfair and unreasonable and that the Board failed to properly assess his credibility.

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.  The applicant was late in bringing the intended appeal.  The length of delay (for almost 6 months) was serious.  He said that he did not receive the CALL-1 Form in time without giving any details or evidence in support.  He did not explain how and when he eventually came to know about the CALL-1 Form.  The CALL-1 Form was sent by post on 18 January 2019 to Castle Peak Bay Immigration Centre (which was the address he stated in his Form 86 and remained the address he used in his summons of 15 July 2019)[5] and  he did not intimate to the court that he had not received the CALL-1 Form in time when he applied for extension of time to appeal before the judge on 6 August 2019 (see [4] of the judgment of 23 September 2019).  There is no reason why he did not receive the same in the ordinary course of post.  The vague and general assertion by the applicant that he did not receive the same in good time is not credible.

16.  In the circumstances, the applicant did not have any reasonable explanation for his delay in bringing the intended appeal and the court will only grant extension of time if his appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re MA [2019] HKCA 1020.

17.  The grounds of appeal set out in the submissions alleged un-particularized errors on the part of the Board.  The submissions did not engage with the reasons given by the judge in refusing to grant leave and failed to identify any error on the part of the judge.  As this Court has often stated, an appeal is not a further opportunity to regurgitate what had been advanced but rejected in the court below.  In an appeal to this court, it is necessary for the applicant to identify errors made by the judge.  The skeleton submissions do not provide any viable grounds of appeal in this respect.

18.  Further, the allegations of the applicant against the Board were general assertions without particulars.  It is also incorrect for the applicant to suggest that the Board did not properly assess his credibility.  At [54] to [63] of the Board’s decision, the adjudicator had carefully assessed the applicant’s evidence (and accepting the factual aspects of his evidence) and explained the reasons for rejecting the applicant’s claim after proper assessment on the risk of harm.  We cannot see any basis for suggesting that the assessment is unfair or unreasonable.

19.  As we do not see any prospect of success in the intended appeal, we will not grant extension of time for a hopeless appeal. The summons filed on 8 October 2019 is dismissed accordingly.