RE SANDEEP

CAMP 118/2020

[2021] HKCA 1143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 118 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 51 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 10 May 2019, by way of a decision (“the Deputy Judge’s Decision”)  set out in Form CALL-1 ([2019] HKCFI 1235), Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 15 December 2017 (“the Board’s Second Decision”), as well as the decision of the Director of Immigration (“the Director”)  dated 19 January 2017 (“the Director’s Second Decision”).

2.  As will be seen below, the Director also made an earlier decision dated 14 October 2014 (“the Director’s First Decision”)  and the Board also made an earlier decision dated 17 April 2015 (“the Board’s First Decision”).  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”, and the Board’s First Decision and the Board’s Second Decision will be referred to collectively as “the Board’s Decisions”.

3.  The 14-day time period for the applicant to appeal the Deputy Judge’s Decision provided under Order 53, rule 3(4)  of the Rules of the High Court (Cap 4A)  (“the RHC”)  expired on 24 May 2019.  On 28 October 2019, the applicant sought extension of time before the Deputy Judge to appeal the Deputy Judge’s Decision.  He was around five months out of time.

4.  On 29 June 2020, the Deputy Judge refused to grant extension of time to the applicant (“the Extension of Time Decision”).

5.  By a summons dated 4 August 2020 (“the CA Summons”), the applicant renewed his application to appeal out of time before this Court.  Directions were given by the Registrar of Civil Appeals to the applicant on 11 December 2020 concerning the conduct of the application.  Under Order 59, rule 14A(1)  of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  Paragraph 7 of those directions also stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the paper.  After considering the documents filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of India.  He came to Hong Kong on 7 January 2011 but was refused permission to land.  On the same date, he lodged a torture claim which was rejected on 15 July 2011. He was deported to India on 20 July 2012.  He last arrived in Hong Kong on 3 June 2014 and was again refused permission to land.  He lodged a non-refoulement claim on the same date.

7.  The applicant’s personal background and his claim were summarized at paragraph 6 of the Director’s First Decision and paragraphs 16 - 17 of the Board’s First Decision.

8.  Briefly stated, the applicant claimed that he would be harmed or killed by Kashmir Singh (“KS”)  and KS’s followers if he was returned to India.  The applicant said he was a supporter of the Congress Party (“CP”)  which had a rival party called the Akali Dal Party (“ADP”).  KS was an influential member of ADP who sent members to persuade the applicant to join them.  However, the applicant refused.  He subsequently found out that his friend, who was also a member of CP, was arrested by the police for selling illegal drugs and he believed that KS was behind the arrest.  A month later, the applicant was attacked by four to five unknown persons.  While he was in the hospital for medical treatment, he heard people looking for him to try to kill him.  The applicant’s mother reported the attack to the police.  However, instead of investigating into the attack, the police informed the applicant that his friend said that he was also involved in illegal drug dealing.  Out of fear, he came to Hong Kong for protection.

The Director’s Decisions and the Board’s Decisions

9.  By way of the Director’s Decisions, the Director assessed and dismissed the applicants’ non-refoulement claims on the BOR 3 risk[1], persecution risk[2], and torture risk[3] which was covered by the Director’s First Decision, and the BOR 2 risk[4], which was assessed in the Director’s Second Decision.

10.  The applicant lodged an appeal to the Board against the Director’s Decisions.  An oral hearing was held on 21 January 2015 (adjourned)  and 23 March 2015 for the appeal against the Director’s First Decision.  After hearing the applicant, and considering his evidence in the non-refoulement claim form, the Board found that the applicant’s version of events was not plausible (paragraphs 44 - 46 of the Board’s First Decision).  It also found that internal relocation was available to the applicant (paragraphs 70 - 73 of the Board’s First Decision).  As a result, the Board dismissed his appeal against the Director’s First Decision. Further, by way of the Board’s Second Decision, the Board also dismissed his appeal against the Director’s Second Decision on the basis that, in light of the Board’s finding of facts in the Board’s First Decision, the applicant had failed to prove that he would be at risk of BOR 2 harm upon refoulement (paragraphs 14 - 15 of the Board’s Second Decision).

The Deputy Judge’s Decision

11.  On 10 January 2018, by way of a Form 86, the applicant sought leave to challenge the Board’s Second Decision and the Director’s Second Decision by way of judicial review[5]. After hearing the applicant and considering the documents, the Deputy Judge refused to grant leave to him to apply for judicial review.  The Deputy Judge set out the grounds of review and his reasons for refusal at paragraphs 15 - 17 of the Deputy Judge’s Decision:

“15. On 10 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director wrongly concluded that the applicant failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 risk upon his return to India when his mother did report the matter to the local police and that it was a misconduct of the police officer that no protection was provided to the applicant;

(2)  that the Director failed to advise the applicant to obtain relevant medical evidence before drawing the conclusion that there was no real risk of ill-treatment to him;

(3)  that the adjudicator failed to make sufficient enquiry before finalizing her decision;

(4)  that the adjudicator wrongly concluded that the applicant failed to show that there would be insufficient state protection when it was evident that there was no protection provided to the applicant at all; and

(5)  that the adjudicator failed to advise the applicant to obtain medical evidence from the Indian authorities before concluding that it was not shown that the applicant had suffered physical and/or mental suffering of the requisite severity in the past.

16. These are however mostly 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 how the Director was wrong in assessing his claim under BOR 2 risk, or in what way did the adjudicator fail to make sufficient enquiry in her consideration of his claim, or how the adjudicator had erred in finding that state protection would be available to him if refouled to India, or how any medical evidence if available would advance his case any further. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and the fact that his mother may have made a police report on his behalf and that there was no follow-up action by the local police does not necessarily follow that his claim must engage BOR 2 risk.

17.  In the absence of any additional facts or materials from the applicant, the adjudicator was in my judgment correct in coming to the conclusion that the materials presented by him earlier with legal representation did not support a claim under BOR 2 risk, and I do not find any merit in any of the grounds put forward by the applicant for his intended challenge. In the premises I not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

Application for extension of time

12.  On 28 October 2019, the applicant took out a summons to seek extension of time to appeal the Deputy Judge’s Decision.  By way of the Extension of Time Decision, the Deputy Judge dismissed the applicant’s application on the basis that he failed to provide any good reason for the substantial delay and that his intended appeal had no prospect of success.  Thus, the Deputy Judge concluded that it would be futile to extend time.

Renewed application for extension of time to this Court

13.  On 4 August 2020, the applicant renewed the application for extension of time to appeal the Deputy Judge’s Decision before this Court.  In the CA Summons and his supporting affirmation, the applicant explained that the delay was due to his lack of knowledge and insufficient resource.  In the written submissions of 28 December 2020, the applicant simply repeated his ground for non-refoulement protection.  He complained that the Board failed to take into account many aspects of his non-refoulement claim, without identifying those aspects with any particularities.  Further, he also did not identify any specific errors in the Deputy Judge’s Decision.

Legal principles

14.  As mentioned, pursuant to Order 53, rule 3(4)  of the RHC, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted.

15.  Even if the court accepts that the applicant’s explanation for delay is reasonable, an applicant still has to show that the appeal has a reasonable prospect of success before extension of time will be considered.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

16.  In this respect, 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 principles can be summarised 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 the 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)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new arguments, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  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 decision of 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 RHC.

Discussion

17.  A delay of almost five months is very substantial in the context of a statutory time limit of 14 days.  Whilst it was accepted by the Deputy Judge that the applicant indeed only received the Deputy Judge’s Decision on 24 October 2019 because he had left the Detention Centre, he failed to explain to the Deputy Judge the reason for his failure to provide his new address to the Court ([5] - [7] of the Extension of Time Decision).  As repeatedly emphasized by this Court, it is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant: Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9].  Thus, we agree with the Deputy Judge that the applicant did not provide any good reason for the substantial delay.  Further, the applicant’s explanation in the CA Summons that the delay was due to lack of knowledge was also not a valid one as ignorance of the law is not generally an excuse for delay: see Re Gurung Min Bahadur [2018] HKCA 226 at [10].

18.  For the above reasons, we refuse to accept the applicant’s explanation for the substantial delay.  We now turn to consider the merits of the intended appeal.

19.  As mentioned at [13] above, the applicant simply failed to advance any grounds with particularities pointing out any errors in the Deputy Judge’s Decision.  There are no viable grounds of appeal, and no merits in the intended appeal.  It would be futile to extend time.  We therefore dismiss the CA Summons.