RE S

CAMP 88/2019

[2019] HKCA 1221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 88 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 160 OF 2016)

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J U D G M E N T

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

Introduction

1.  By an order dated 28 April 2017 and Reasons for Judgment dated 29 May 2017 (“the Decision”), D’Almada  Remedios J (“the Judge”) refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 17 August 2016.

2.  On 4 February 2019, the Judge dismissed the applicant’s summons seeking an extension of time to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews his application to this Court by way of a summons dated 10 May 2019. Pursuant to the directions of the Registrar of Civil Appeals given on 14 May 2019 and 3 June 2019, the applicant should lodge his written submissions on or before 26 June 2019. The applicant had failed to do so. The Registrar further directed that this Court will decide whether to determine the application on paper. As it is appropriate to do so, this application shall be determined on paper accordingly.

Background

4.  The applicant is a national of India.  He sought entry to Hong Kong on 21 March 2014, claiming he was in garment and electronics business, but he was refused permission to land in Hong Kong. On 22 March 2014, he raised his non-refoulement claim. The applicant’s claim was based on his alleged fear that he would be harmed or even killed by his former girlfriend Rabina’s family because they objected to his previous love affair with Rabina.

5.  By a Notice of Decision dated 4 August 2014, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 3 risk, the persecution risk, and the torture risk.  

6.  The applicant appealed to the Board.  After the hearing on 14 July 2015, the Board dismissed the applicant’s case on 17 August 2016.  The Board found that the three incidents of assault by Rabina’s family were only intended to keep the applicant away from Rabina and the applicant actually did not suffer any injury in the last incident. Further, the alleged injury did not attain the minimum level of severity.  There was no evidence of state instigation or consent or acquiescence by public official. The Board further found that there was State protection and reasonable option of internal relocation. For the aforesaid reasons, the Board rejected the applicant’s claim on all applicable grounds.

The Judge’s Decision

7.  On 2 September 2016, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation filed on the same day, he reiterated the background of his case and set out some articles/provisions under International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance (Cap 383), Basic Law, United Nations Convention Against Torture and some case law in relation to judicial review. The applicant further advanced the following grounds of complaint against the Board’s decision:

(1) failing to carry out sufficient research and inquiry into the COI conditions of India;

(2) failing to properly assess and give weight to relevant COI that resulted in unreasonable decision;

(3) failing to evaluate whether State protection was available and misdirected on law in relation to the extended meaning of State protection;

(4) taking into account of irrelevant matter and failing to take into account of the factors that were favourable to the applicant’s case;

(5) failing to obtain psychological and psychiatric reports of the applicant;

(6) applying the incorrect standard of proof; and

(7) lack of legal assistance

8.  On 29 May 2017, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review. After summarizing the background of the case, as well as the decisions of the Director and the Board, she gave the following reasons at [48] – [66] for her refusal to grant leave:

“Merits of application

48. I turn to deal with the merits of the application. The grounds for leave are set out at pages 15 to 19 of the affirmation.

49. Grounds 1, 2 and 4 on procedural impropriety or unfairness and irrationality are related. Failure to carry out sufficient enquiries into the country of origin conditions (COI) and to place any weight on the relevant COI research and cherry picking and putting weight on the COI of little or no relevance.

50. Ground 4 claims that the Adjudicator failed to analyze and assess whether state protection exists in India under the extended meaning namely whether the state had exercised due diligence or sufficient due diligence.

51. There is no basis to say that the Adjudicator failed to carry out sufficient enquiry into the matter and that she failed to give sufficient weight to the application of the extended concept of state acquiescence. It is clear that the Adjudicator did make sufficient enquiries into the COI and placed weight on the relevant conditions in paragraphs 82 to 102 of her decision. She also analysed and assessed whether state protection exists in India. Grounds 1, 2 and 4 fails.

52. Ground 3 claims that the Adjudicator failed to evaluate and make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights, as mandated pursuant to Article 3(2) of CAT; and so her decision was unreasonable.

53. According to ST v Betty Kwan & anor [2013] 3 HKC 87, Court of Appeal, §37(2):

“The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not by itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the individual concerned would be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture.”

54. The Adjudicator was not satisfied that Hashimi and Safique were acting in any official capacity. She found that it was the bare assertion that Hashimi is a powerful and influential leader of INC in Khiddipore. She found that there was no evidence as to what position Hashimi enjoyed in INC and next to no evidence about Safique other than he worked in an office and had friends who beat the Applicant twice. She found that there was no evidence that INC had a part in any of these incidents. She found that even if the risk arose from his failed elopement attempt this was a private matter the harm inflicted by Hashimi and Safique who were non-state agents did not constitute ill-treatment under Article 3. There was therefore no duty on the Adjudicator to proceed a step further to consider the pattern of violation of human rights. Ground 3 fails.

55. Ground 5 - Irrationality. This ground claims that the Adjudicator took into account and put weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact or facts and failed to take into account and put weight on facts and inferences that were favourable to the Applicant. As a consequence the Adjudicator arrived at a Decision that was unreasonable.

56. This ground contains no particulars and is unsubstantiated.

57. Ground 6 - Failure to call for psychological and psychiatric evaluation and reports at any stage of the screening or by the Adjudicator at the appeal stage.

58. It is not clear on what basis the Applicant is relying upon but it is important to note that he never complained of any mental anxiety. His evidence focused on the physical beatings he suffered. Although from his case he did say that Safique threatened to kill him. No evidence or allegation was put before the Director or the Adjudicator that he suffered mentally. The fact that he was able to marry, live in Mumbai, travel to Hong Kong and continue to work does not support any claim if there is one that he has, any mental suffering. There was no basis nor requirement for the Adjudicator to call for psychological and psychiatric evaluations or reports at any stage of the screening or at the appeal stage. Ground 6 has no merits.

59. Ground 7 - Failure of the Adjudicator to apply the correct standard of proof.

60. The Adjudicator considered the essential issues of torture risk, BOR risk and persecution risk. The Adjudicator correctly set out the laws relating to the three grounds. The standard of proof was correctly applied and set out in paragraph 16- 18, 20, 22 and 24 of the Decision. This ground has no merit.

61. Ground 8 - Procedural impropriety. Failure at first instance by the assigned duty lawyer resulted in a lack of and/or insufficient legal representation for the Applicant and he was not afforded a fair procedure.

62. The same duty lawyer represented the Applicant before the Director and the Adjudicator. There are no particulars given of the alleged failures of the duty lawyer and how legal representation was insufficient. This ground is unsubstantiated.

63. The remaining ground was the right to life under Article 28 of the Basic Law and Article 2 of the Bill of Rights Ordinance. In practice, the right to life is mainly protected from the criminal law (murder and manslaughter). The right to life must be protected from extra judicial killings such as the Applicant would face if he were deported to India into the murderous reach of his enemies.

64. The Adjudicator found that the Applicant had failed to establish personal risk or a real chance of sufficiently serious harm at the hands of Hashimi and Safique, there is no arguable basis for such intended ground.

Conclusion

65. The Adjudicator carefully considered and properly examined the Applicant’s case. The Applicant has not shown that he has a reasonably arguable claim which enjoys a realistic prospect of success.

66.  Leave for judicial review is refused.”

9.  By a summon dated 3 December 2018, the applicant sought leave to appeal against the Decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A) had expired on 12 June 2017.  In his supporting affirmation, he briefly explained that he did not receive the Decision or the court order as he was detained and had no means to seek legal advice.  

10.  By the Leave Decision dated 4 February 2019, the applicant’s summons was dismissed.  At the hearing, the applicant tried to put the blame and responsibility of not receiving the Decision and court order on his friend, but his case was rejected outright by the Judge. The Judge further noted that the court had been able to contact the applicant with the address originally provided to the court.   In the absence of any good explanation for his substantial delay in applying for leave for judicial review and any valid grounds to support his intended appeal, the Judge dismissed the summons accordingly.

The Renewed Application

11.  By the summons dated 10 May 2019, the applicant renewed the matter before us. He did not provide any grounds of appeal in the summons or in his supporting affirmation.

Legal Principles

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

13.  Even if the court does not accept that the applicant’s explanation for the delay is reasonable, the court should still examine if he has merit in the intended appeal, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

14.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. For the purpose of this application, the salient principles are as follows:

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) 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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

15.  We agree with the Judge that the applicant did not provide any good explanation for his substantial delay in applying for leave to appeal against the Decision. The applicant did not provide any grounds of appeal to pinpoint any errors of law or procedures of the Decision, the intended appeal is bound to fail. 

16.  Further, the applicant’s case was rejected by the Board on the grounds that his alleged incidents of assault did not involve any form of state instigation or involvement of public officials and the alleged injuries did not attain the minimum level of severity that would warrant any non-refoulement protection. It was open for the Board to come to its findings and conclusion and we find no errors of law or procedural unfairness or irrationality in the decision of the Board. We agree with the Judge that the applicant’s application was not reasonably arguable and had no reasonable prospect of success. 

17.  For these reasons, we do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The summons dated 10 May 2019 is dismissed accordingly.

18.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.